Nevada Reports 1999 (115 Nev.) PDF

115 Nev.
1, 1 (1999)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 115
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115 Nev. 1, 1 (1999) Hayes v. Gallacher
SHERI LYN HAYES, Appellant, v. HAROLD GAY GALLACHER, III, Respondent.
No. 31191
February 12, 1999 972 P.2d 1138
Appeal from an order of the district court denying appellant's motion to move out of state
with minor children and granting respondent's countermotion for a contingent change in
custody. Eighth Judicial District Court, Clark County; Gary L. Redmon, Judge, Family
Division.
Former wife filed petition seeking permission to relocate with parties' children to site of
her current husband's new job assignment in Japan. The district court denied former wife's
motion to relocate and entered conditional order transferring primary custody of children
from former wife to former husband if former wife chose to move. Former wife appealed.
The supreme court, Shearing, J., held that (1) proposed relocation constituted substantial
change in circumstances justifying reexamination of award of primary custody based on best
interests of children, and (2) remand was required for reconsideration of denial of former
wife's motion to relocate and of conditional order transferring primary custody.
wife's motion to relocate and of conditional order transferring primary custody.
Reversed and remanded.
Keefer, O'Reilly, Ferrario & Lubbers and Anita A. Webster, Las Vegas, for Appellant.
Law Offices of Israel L. Kunin, P.C. and Rebecca L. Burton, Las Vegas, for Respondent.
1. Infants.
The district court has broad discretionary power in determining questions of child custody, and the
supreme court will not disturb the district court's determinations absent a clear abuse of discretion.
2. Parent and Child.
When parent having primary physical custody of parties' children seeks permission to relocate out of state with children, district
court must first determine whether the custodial parent has made threshold showing of sensible, good faith reason for the move. NRS
125A.350.
If custodial parent meets threshold requirement of showing sensible, good faith reason for proposed out-of-state move with parties'
children, district court must consider whether adequate alternative opportunity exists for visitation with non-custodial parent. NRS
125A.350.
4. Divorce.
Former wife's proposed relocation with parties' children to site of her current husband's new job assignment in Japan constituted
substantial change in circumstances justifying reexamination of award of primary custody based on best interests of children.
5. Divorce.
Remand was required for reconsideration of denial of former wife's motion to relocate with parties' children to site of her current
husband's new job assignment in Japan, and of conditional order transferring primary custody of children from former wife to former
husband if former wife chose to move with her husband, where trial court heard no evidence regarding relative merits of former
husband and former wife as primary custodians, made no determination as to best interests of children, and failed to consider former
wife's proven allegation that former husband had committed domestic violence. NRS 125A.350.
6. Infants.
If an allegation of domestic violence is proven, a rebuttable presumption arises that sole or joint custody of the child by the
perpetrator of the domestic violence is not in the best interest of the child. NRS 125.480(5).
Trial courts may not use changes of custody as a sword to punish perceived parental misconduct.
Conditional orders changing custody based upon custodial parent's proposed out-of-state move with parties' children should be
made only if the trial court affirmatively determines that the best interests of the children are served by the change in custody, taking
into consideration all factors, not just the move.
Even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent
should retain primary custody and be allowed to relocate with the parties' children if he or she shows that the
relocation would be better for the children than a transfer of primary custody to the other parent.
Primary custody should not be given to a parent who is not able or fit to exercise this right, or whose relationship with the child is
such that the modification is not in the child's best interest.
Before Rose, C. J., Young, Maupin and Shearing, JJ.
OPINION
By the Court, Shearing, J.:
Sheri Lyn Hayes and Harold Gay Gallacher were married in 1987. In July 1995, Harold filed for divorce. Sheri and Harold have three
minor children.
On November 13, 1995, the district court issued a divorce decree granting Sheri and Harold joint legal custody of their children. The
district court granted primary physical custody to Sheri, subject to Harold's right of visitation twice during the week, on alternating
holidays, and for two weeks during the summer.
In March 1997, Sheri married Shane Hayes, who is a member of the United States Air Force. The Air Force scheduled Shane to
transfer to an air base in Japan effective no later than August 1997. Thus, on May 29, 1997, pursuant to NRS 125A.350,
1
Sheri
petitioned the district court for an order allowing her to move to Japan with the children. In
response, Harold filed a countermotion for a change of primary physical custody in the event
Sheri moved to Japan.
On September 2, 1997, the district court entered an order (1) denying Sheri's motion to
relocate the minor children to Japan and (2) granting Harold's countermotion to change
primary physical custody of the children if Sheri moved to Japan. The order was entered
without any evidentiary hearing, based on the written record alone.
__________

1
NRS 125A.350 provides:
If custody has been established and the custodial parent or a parent having joint custody intends to move
his residence to a place outside of this state and to take the child with him, he must, as soon as possible
and before the planned move, attempt to obtain the written consent of the other parent to move the child
from the state. If the noncustodial parent or other parent having joint custody refuses to give that consent,
the parent planning the move shall, before he leaves the state with the child, petition the court for
permission to move the child. The failure of a parent to comply with the provisions of this section may be
considered as a factor if a change of custody is requested by the noncustodial parent or other parent
having joint custody.
record alone. The district judge entering the order was a different district judge than the one
who originally heard the evidence regarding custody. Sheri has appealed the order denying
relocation and the order granting Harold's countermotion for change of custody.
The district court made the following findings of fact:
1. It is in the best interest of the minor children to remain in Las Vegas.
2. Sheri's desire to move is due to her military spouse's transfer to Japan. Her motives
therefore, are honorable and not designed to frustrate Harold's visitation rights.
3. Notwithstanding Sheri's honorable motives, she fails to justify relocation of the
children to Japan under the standards set forth in Schwartz v. Schwartz, 107 Nev. 378,
812 P.2d 1268 (1992). The court has concerns about the move to Japan such as that the
children would be placed in a country where they do not speak the language, that they
would lose contact with their extended family, that the available medical facilities
would not be adequate in the event of an emergency medical situation, that the quality
of the housing and environmental conditions in Japan is unknown, and that Sheri's
overall financial situation would be reduced.
4. The cost of visitation transportation would be approximately $6,000 per round-trip
ticket for the three children.
5. Any cultural advantages for the children could take place over a summer visit to
Japan.
6. Harold's motive for resisting Sheri's relocation of the children halfway around the
world is natural and also honorable.
7. If Sheri chooses to move to Japan, then Harold has met the standard under Murphy
v. Murphy, 84 Nev. 710, 447 P.2d 608 (1974) for a change of circumstances.
[Headnote 1]
The district court has broad discretionary power in determining questions of child custody,
and this court will not disturb the district court's determinations absent a clear abuse of
discretion. Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993). However, we must
be satisfied that the court's determination was made for appropriate reasons. Sims v. Sims,
109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993).
[Headnote 2]
We have construed NRS 125A.350 in several recent cases in which one parent had
primary physical custody: Davis v. Davis, 114 Nev. 1461, 970 P.2d 1084 (1998); Gandee v.
Gandee, 111 Nev. 754,
Nev. 754, 895 P.2d 1285 (1995); Trent v. Trent, 111 Nev. 309, 890 P.2d 1309 (1995); Jones
v. Jones, 110 Nev. 1253, 885 P.2d 563 (1994); and Schwartz v. Schwartz, 107 Nev. 378, 812
P.2d 1268 (1991). These cases establish a two-step process that the district court must
undertake when deciding a motion to relocate pursuant to NRS 125A.350. First, the district
court must find whether the custodial parent wishing to leave Nevada made a threshold
showing of a sensible, good faith reason for the move. Gandee, 111 Nev. at 757, 895 P.2d at
1287.
[Headnote 3]
If the custodial parent meets this threshold requirement, the district court must then weigh
the factors as outlined in Schwartz, 107 Nev. at 383, 812 P.2d at 1271. Additionally, in Trent
we determined that when considering the Schwartz factors, a district court should focus on
the availability of adequate, alternative visitation. 111 Nev. at 315-16, 890 P.2d at 1313.
The present matter is particularly difficult because it does not fit into the traditional
analysis outlined above. It appears that there is no adequate alternative visitation for the
non-custodial parent, whether it is the father or the mother. There appears to be no dispute as
to the good faith of either party. The custodial parent wishes to move with her family to be
with her husband at his new assignment. However, the requested move is so far away from
the non-custodial parent that frequent visitation is precluded and longer visits may be
prohibitively expensive. Here, important interests and policies come into conflict: (1) the
right of children to have frequent associations and a continuing relationship with both parents
after a divorce, NRS 125.460(1); (2) the individual right of a parent to change his or her
residence; and (3) the right of a parent to have access to his or her children. The decision in
this case either requires that Sheri choose between her husband and her children, or that
Harold risk losing physical contact with his children for a significant period of time.
Whatever the decision, one party or the other, as well as the children, will be negatively
impacted.
When parents cannot agree, this difficult custody decision must be made by the district
court after it hears the evidence and applies the appropriate guidelines. Courts have applied a
wide variety of approaches to a question like this, none of which are fully satisfactory. Some
courts attach little value to the needs of the relocating parents; others ignore what may
amount to substantial consequences to the non-moving parent. Still others weigh interests and
values that are, at bottom, immeasurable.
On matters where relocation of the primary custodian would substantially obliterate the
possibility of a traditional alternative visitation,
visitation, this court chooses to adopt the approach stated in Section 2.20 of the American
Law Institute's Principles of the Law of Family Dissolution, (Tentative Draft No. 3, Mar. 20,
1998).
2
The parts of Section 2.20 relevant to this matter are:
2.20 Relocation of a Parent
(1) The relocation of a parent constitutes substantially changed circumstances
under this section only when it significantly impairs another parent's ability to exercise
responsibilities that parent has been exercising under a parenting plan.
. . . .
(4) When the relocation constituting changed circumstances under paragraph
(1) renders it impractical to maintain the same proportion of residential responsibility as
that being exercised by each of the parents, the court should modify the parenting plan
in accordance with the child's best interests, as defined in 2.09 and 2.10, and in
accordance with the following principles:
(a) A parent who has been exercising primary residential responsibility for the child
should be allowed to relocate with the child so long as it is for a legitimate purpose and
to a location that is reasonable in light of the purpose. A relocation is for a legitimate
purpose if it is to be close to family or other support networks, for significant health
reasons, to protect the safety of the child or another member of the child's household, to
pursue an employment or educational opportunity, or to be with one's spouse [or spouse
equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an
employment or educational opportunity, in another location. The relocating parent has
the burden of proving the legitimacy of any other purpose. A move with a legitimate
purpose is reasonable unless its purpose is shown to be substantially achievable without
moving, or by moving to a location that is substantially less disruptive of the other
parent's relationship to the child.
. . . .
(d) The court should attempt to minimize the impairment to a parent-child
relationship caused by a parent's relocation through alternative arrangements for the
exercise of residential responsibility appropriate to the parents' resources and
circumstances and the developmental level of the child.
__________

2
Although the draft has not been finally approved, it has been prepared by family law experts and has
received careful consideration by family law practitioners over several years.
[Headnote 4]
The relocation proposed here significantly impairs the other parent's ability to exercise the
responsibilities he had been exercising. Therefore, it constitutes substantially changed
circumstances which justify a reexamination of custody based on the best interest of the
children, taking into account all relevant factors, including the effects of the relocation.
[Headnote 5]
In this matter, the district court not only denied Sheri's motion to relocate, but also ordered
that primary custody of the children be transferred from Sheri to Harold if Sheri chooses to
move to Japan. The district court issued the orders without hearing any evidence regarding
the relative merits of the parents as primary custodians. Furthermore, the district court made
findings of fact contrary to the unrefuted evidence in the record regarding the quality of life at
a military base in Japan. Also, the district court apparently failed to consider the application
of NRS 125.480(4) which provides:
In determining the best interest of the child, the court shall consider, among other
things:
. . . .
(c) Whether either parent or any other person seeking custody has engaged in an act of
domestic violence against the child, a parent of the child or any other person residing
with the child.
[Headnote 6]
The record reflects that Sheri had obtained a Temporary Protective Order Against
Domestic Violence directed at Harold. After a hearing on the matter, the district court found
that violence had occurred and extended the protective order against Harold for one year.
Under NRS 125.480(5), if domestic violence is proven, a rebuttable presumption arises that
sole or joint custody of the child by the perpetrator of the domestic violence is not in the best
interest of the child. It does not appear that the district court gave any consideration to the
issue of domestic violence when denying Sheri's motion to relocate and ordering the change
of custody of the children to Harold. Therefore, the orders of the district court must be
reversed and remanded for consideration of the relevant evidence.
[Headnote 7]
An order changing primary custody if the primary custodian chooses to move after the
court denies a motion to relocate appears to be designed to punish the primary custodian for
relocating. The punitive nature of the order in this case is made clear by the fact that it
changes custody without any provision for Sheri, who has been primary custodian, to
have contact with the children.
by the fact that it changes custody without any provision for Sheri, who has been primary
custodian, to have contact with the children. This court has made it clear that Nevada courts
may not use changes of custody as a sword to punish perceived parental misconduct. Sims v.
Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993).
[Headnotes 8-10]
In this case, the public policy considerations make the district court's conditional order
particularly unacceptable in that it is designed to test the maternal attachment by forcing Sheri
to choose between her children and her husband. Such conditional orders changing custody
should be made only if the court affirmatively determines that the best interests of the child
are served by the change in custody, taking into consideration all factors, not just the move.
ALI, supra, 2.20(4). Thus, even if a relocating parent is moving for illegitimate reasons or
to an unreasonable location, that parent should retain primary custody and be allowed to
relocate with the child if he or she shows that the relocation would be better for the child than
a transfer of primary custody to the other parent. ALI, supra, 2.20 cmt. b. Primary custody
should not be given to a parent who is not able or fit to exercise this right, or whose
relationship with the child is such that the modification is not in the child's best interest. Id.
The district court issuing the conditional order transferring custody to Harold heard no
evidence regarding the best interest of the children. Further, it does not appear that the district
court considered the indications of domestic violence by Harold, or other factors considered
by the original district court judge who determined that the best interest of the children was to
grant primary custody to Sheri. Therefore, the district court order denying relocation and
changing custody of the Hayes children is reversed and remanded for reconsideration in
accordance with the appropriate standards.
3

Rose, C. J., Young and Maupin, JJ., concur.
__________

3
This matter was submitted for decision prior to expansion of the court from five to seven justices on January
4, 1999; only those justices remaining on the court who previously heard this matter participated in the decision.
____________
115 Nev. 9, 9 (1999) Martinez v. State
EDUARDO MARTINEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26650
February 12, 1999 974 P.2d 133
Appeal from a judgment of conviction entered pursuant to a guilty plea of two counts of
battery with use of a deadly weapon. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Defendant was convicted in the district court of battery with use of a deadly weapon and
ordered to pay restitution, and defendant appealed. The supreme court held that: (1) defendant
was required to pay restitution to victims' medical providers; (2) defendant was not required
to pay restitution to victims' insurance company; and (3) defendant's inability to pay
restitution was irrelevant for purposes of ordering restitution.
Affirmed in part and vacated in part.
[Rehearing denied October 1, 1999]
Morgan D. Harris, Public Defender, and Sharon G. Dickinson, Deputy Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney,
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Victims' medical costs for the treatment of their injuries directly resulting from the crime are the proper
subject of restitution. NRS 176.015(5)(b).
2. Criminal Law.
Defendant was required to pay restitution to battery victims' medical providers for treatment related to his criminal conduct under
restitution statute. NRS 176.015(5)(b).
3. Criminal Law.
Sentencing court may not order a defendant to pay restitution to an insurance company for the company's payment of a claim by or
on behalf of a crime victim. NRS 176.015(5)(b).
4. Criminal Law.
Insurance company was not a victim under restitution statute and therefore defendant, convicted of battery with use of a deadly
weapon, was not required to pay restitution to insurance company for company's payment to battery victims' medical providers. NRS
176.015(5)(b).
5. Criminal Law.
On appeal, the supreme court generally will not disturb a district court's sentencing determination so long as it does not rest upon
impalpable or highly suspect evidence.
6. Criminal Law.
Defendant is not entitled to a full evidentiary hearing at sentencing regarding restitution, but he is entitled to challenge restitution
sought by the state and may obtain and present evidence to support that challenge.
7. Criminal Law.
Defendant's inability to pay restitution to battery victims' medical providers was irrelevant for purposes of
ordering restitution under restitution statute. NRS 176.015.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction entered pursuant to a guilty plea of two
counts of battery with use of a deadly weapon. The district court sentenced appellant to serve
five years in the Nevada State Prison on each count, to run concurrently. Further, the district
court ordered appellant to pay $67,208.86 in restitution on count I and $1,668.40 in
restitution on count II.
The state charged appellant Eduardo Martinez by information filed on September 12,
1994, with two counts of battery with use of a deadly weapon. The charges derived from an
altercation in which appellant pulled out a gun and shot one victim in the chest. The second
victim was hit in the leg by a ricochet bullet. On September 27, 1994, appellant entered a
guilty plea to both counts. At the time, appellant was an eighteen-year-old illegal immigrant
with a limited education and no financial assets. The Division of Parole and Probation could
not locate the two victims. The Division's inquiries with medical care providers revealed that
victim number one had sustained a bill of $467.50 from Mercy Ambulance, which remains
unpaid. Further, victim number one sustained a bill of $66,741.36 from University Medical
Center, of which $200.00 was paid by victim number one as an insurance deductible, with the
balance being paid by Humana Insurance Company of Louisville, Kentucky. Victim number
two sustained a bill of $411.35 from Mercy Ambulance and a bill of $1,257.05 from
University Medical Center. None of victim number two's bills have been paid. The Division
of Parole and Probation recommended that appellant be required to pay all of the victims'
medical bills. It appears that the district court followed that recommendation. Appellant's
judgment of conviction does not specify to whom the restitution is payable.
Appellant contends that the district court improperly ordered him to pay restitution to an
ambulance company, a hospital and an insurance company because they are not victims to
whom he may be ordered to pay restitution under Nevada law.
The authority to impose restitution is not an inherent power of the court, but is derived
from statutes. State v. Davison, 809 P.2d 1374, 1375 (Wash. 1991). Thus, we are
constrained by the statutory language in resolving these issues. The district court ordered
appellant to pay restitution pursuant to NRS 176.033{1){c),
ordered appellant to pay restitution pursuant to NRS 176.033(1)(c), which provides that [i]f
a sentence of imprisonment is required or permitted by statute, the [sentencing] court shall: . .
. [i]f restitution is appropriate, set an amount of restitution for each victim of the offense.
NRS 176.015(5)(b),
1
addressing sentencing and judgment, provides that:
Victim includes:
(1) A person, including a governmental entity, against whom a crime has been
committed;
(2) A person who has been injured or killed as a direct result of the commission of a
crime; and
(3) A relative of a person described in subparagraph (1) or (2).
[2]

We have previously held that a sentencing court could properly order a defendant to pay
restitution to a county social services department and a state welfare agency for money
expended on behalf of child abuse victims because: (1) the loss was unexpected and occurred
without the agencies' voluntary participation, and (2) the agencies expended the money to
benefit the children who were the true victims of the defendant's criminal conduct. This court
concluded that reimbursing agencies was analogous to making restitution to a guardian acting
on behalf of children. Roe v. State, 112 Nev. 733, 735, 917 P.2d 959, 960 (1996).
[Headnotes 1, 2]
Medical care providers who treat crime victims are not victims of crime as defined in NRS
176.015(5)(b). We have held, however, that victims' medical costs for the treatment of their
injuries directly resulting from the crime are the proper subject of restitution. Norwood v.
State, 112 Nev. 438, 441, 915 P.2d 277, 279 (1996). Crime victims' unpaid medical bills are
debts of those victims. Id. For that reason, and considering the above-mentioned factors in
Roe, we conclude that the district court could properly order appellant to pay as restitution the
victims' medical bills that directly resulted from appellant's criminal conduct.
[Headnotes 3, 4]
The situation is different regarding an insurance company. When an insurance company
pays for a victim's medical expenses, it does so pursuant to a contractual obligation to its
insured.
__________

1
At the time of appellant's offense in 1994, NRS 176.015 referred to the definition of victim set forth at
NRS 213.005, which was practically identical to present NRS 176.015(5)(b) and present NRS 213.005 except
that it did not explicitly include governmental entities.

2
See also NRS 213.005(2); 217.007(3)(c), 217.070(1); see generally NRS 217.070(2)-(6).
it does so pursuant to a contractual obligation to its insured. Hewitt v. State, 113 Nev. 387,
390, 936 P.2d 330, 332 (1997). The insurance company is not a victim as defined in NRS
176.015(5)(b). See id. Further, it does not suffer an unexpected harm or loss, as the very
purpose of insurance is to cover such expenses. Id. Therefore, a sentencing court may not
order a defendant to pay restitution to an insurance company for the company's payment of a
claim by or on behalf of a crime victim.
3
Id. at 390-91, 936 P.2d at 332. This ruling does not
prevent an insurance company that reimbursed a crime victim from seeking subrogation from
a criminal defendant, if a statutory or common law right of subrogation exists.
4
Id. at 391
n.3, 936 P.2d at 332 n.3. A defendant's obligation to pay restitution to the victim may not, of
course, be reduced because a victim is reimbursed by insurance proceeds.
5
Thus, restitution
of medical expenses, while inappropriate when payment is ordered to be made to an insurer,
is not inappropriate when the payment, regardless of reimbursement, is ordered to be made to
the victim.
Appellant further contends that the amount of restitution payable to each entity is not
supported by sufficient evidence and that he was denied due process because the district court
did not hold a hearing on restitution. The district court ordered appellant to pay restitution
based upon amounts recited in the presentence report of the Division of Parole and Probation.
Appellant failed to object at the time of sentencing to the restitution amounts. Therefore, he
has waived this issue. See Williams v. State, 103 Nev. 227, 232, 737 P.2d 508, 511 (1987)
(only those improprieties objected to at trial may be considered on appeal).
[Headnotes 5, 6]
Nevertheless, we make use of this opportunity to note the following. Restitution under
NRS 176.033(1)(c) is a sentencing determination. On appeal, this court generally will not
disturb a district court's sentencing determination so long as it does not rest upon
impalpable or highly suspect evidence.
__________

3
Of course, when an insurance company is the actual victim of a crime, such as, for example, in a case of
insurance fraud, the court may order a defendant to pay restitution to an insurance company.

4
To the extent that Hewitt could be read as modifying or expanding the law of subrogation, Hewitt is
overruled. Cf., e.g., Maxwell v. Allstate Ins. Co., 102 Nev. 502, 728 P.2d 812 (1986) (subrogation clause under
which automobile insurer obtains subrogation rights from its insured for medical payments violates public
policy).

5
This rule is analogous to the collateral source doctrine in the law of torts, which provides that if an injured
party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such
payment should not be deducted from the damages which the plaintiff would otherwise collect from the
tortfeasor. See Proctor v. Castelletti, 112 Nev. 88, 90 n.1, 911 P.2d 853, 854 n.1 (1996).
district court's sentencing determination so long as it does not rest upon impalpable or highly
suspect evidence. Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978); Silks v. State, 92 Nev.
91, 545 P.2d 1159 (1976). Sentencing courts are cautioned to rely on reliable and accurate
evidence in setting restitution. A defendant is not entitled to a full evidentiary hearing at
sentencing regarding restitution, but he is entitled to challenge restitution sought by the state
and may obtain and present evidence to support that challenge. In this case, appellant did not
challenge the amount of restitution, so we decline to disturb the district court's determinations
regarding the amount of restitution to be paid to medical care providers.
[Headnote 7]
Appellant further contends that the district court erred by failing to consider his ability to
pay in ordering him to pay restitution. This contention lacks merit; there is no requirement
that the district court consider a defendant's ability to pay in determining at sentencing the
amount of restitution. See NRS 176.015.
Accordingly, we affirm appellant's judgment of conviction, and we vacate that portion of
the judgment directing that restitution be paid directly to Humana Insurance Company.
6

____________
115 Nev. 13, 13 (1999) Dow Chemical Co. v. Mahlum
THE DOW CHEMICAL COMPANY, Appellant/Cross-Respondent, v. CHARLOTTE
MAHLUM and MARVIN S. MAHLUM, Respondents/Cross-Appellants.
No. 28600
February 12, 1999 973 P.2d 842
Petition for rehearing in an appeal and cross-appeal from a judgment of the district court
and appeal from an order of the district court denying a motion for a new trial; motions for en
banc consideration of the petition and for leave to file amicus curiae briefs.
Recipient of silicone breast implants brought products liability action against manufacturer
of implants and manufacturer's parent corporation. Following bankruptcy filing by
manufacturer, claims against parent were severed. The district court entered verdict in favor
of recipient, and subsequently denied parent's motion for new trial. Parent appealed. The
supreme court affirmed in part and reversed in part.
__________

6
This matter was submitted for decision prior to the expansion of the court from five to seven justices on
January 4, 1999; only those justices remaining on the court who previously heard this matter participated in the
decision.
and reversed in part. 114 Nev. 1468, 970 P.2d 98 (1998). Parent sought en banc consideration
of petition for rehearing on negligent undertaking claim. The supreme court held that parent
was not entitled to rehearing.
Petition and motions denied.
Rawlings Olson Cannon Gormley & Desruisseaux, Las Vegas; McDonald, Carano,
Wilson, McCune, Bergin, Frankovich & Hicks, Reno; Mayer, Brown & Platt and Michele
Louise Odorizzi, Chicago, Illinois, for Appellant/Cross-Respondent.
White & Meany, Reno; Ellis & Rapacki, Boston, Massachusetts; Farmer, Price, Hornsby
& Weatherford, Dothan, Alabama, for Respondents/Cross-Appellants.
Thomas J. Hall, Reno; Robin S. Conrad, Washington, D.C., for Amicus Curiae Chamber
of Commerce of the United States.
Perry & Spann, Reno; Hugh F. Young, Jr., Reston, Virginia; Armstrong, Teasdale,
Schlafly & Davis and Jordan B. Cherrick and Jennifer S. Lohman, St. Louis, Missouri, for
Amicus Curiae Product Liability Advisory Council, Inc.
Lionel Sawyer & Collins and Richard Horton, Reno; Covington & Burling and Bruce N.
Kulik, Washington, D.C., for Amicus Curiae Pharmaceutical Research and Manufacturers of
America.
Woodburn and Wedge and Casey W. Vlautin, Reno, for Amicus Curiae American Tort
Reform Association.
Lemons, Grundy & Eisenberg, Reno, for Amicus Curiae Washington Legal Foundation.
Lynn G. Pierce, Reno, for Amicus Curiae Public Citizens.
Galatz, Earl & Bulla, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.
1. Appeal and Error.
Petitions for rehearings of decisions issued prior to effective date of amendment to rule governing en
banc consideration of such petitions do not qualify as proceedings in actions pending in this court on
[effective date of amendment], and thus such petitions are not eligible for en banc consideration. NRAP 40A.
Supreme court had neither overlooked nor misapprehended law or facts regarding negligent undertaking claim against parent
corporation by silicone breast implant recipient, and thus parent corporation was not entitled to rehearing on that claim. NRAP 40(c).
Before Rose, C. J., Maupin and Shearing, JJ., and Ames, D. J.
OPINION
Per Curiam:
In Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998), we reversed the
district court's judgment on the claims of fraudulent concealment, concert of action and
aiding and abetting fraudulent misrepresentation, and vacated the award of punitive damages.
Further, we affirmed the judgment on the claim of negligent undertaking and affirmed the
district court's order denying appellant Dow Chemical's motion for a new trial. Dow
Chemical now petitions this court for a rehearing with respect to the negligent undertaking
claim.
1

[Headnote 1]
As an initial matter, Dow Chemical has moved for en banc consideration of this rehearing
petition pursuant to NRAP 40A. On December 14, 1998, this court issued an order amending,
among other appellate procedure rules, NRAP 40, and adopting Rule 40A. ADKT No. 288
(Order Amending Rules, December 14, 1998). The rules, as amended, became effective on
January 4, 1999. The order amending the rules provides in relevant part as follows:
These rules govern all proceedings in actions commenced in this court after January 3,
1999. The rules govern all further proceedings in actions pending in this court on
January 4, 1999, unless in the opinion of the court their application in a particular
pending action would not be feasible or would work an injustice, in which event the
former procedure applies.
NRAP 40A and its provisions for en banc consideration are inapplicable to the present
petition. The subject appeal, docketed in 1996, is not an action that was commenced in this
court after January 3, 1999. Further, for actions filed prior to January 4, 1999, the new rules
apply only if the actions were still pending in this court on January 4, 1999. For the purpose
of these new rules, we conclude that petitions for rehearings of decisions rendered before
January 4, 1999, do not qualify as proceedings in actions pending in this court on January 4,
1999. Otherwise, matters litigated before the five-justice court would be relitigated
before the new seven-justice court, to which such matters had never been submitted.
__________

1
The Chamber of Commerce of the United States and the Medical Device Manufacturers Association have
both filed motions for leave to file amicus curiae briefs in support of this petition. It appears from the motions
that the issues raised will substantially mirror those raised on appeal and rehearing. Such briefs will not assist
this court, and we therefore deny the motions.
matters litigated before the five-justice court would be relitigated before the new
seven-justice court, to which such matters had never been submitted. Thus, we conclude that
Dow Chemical's arguments to the contrary are without merit, and we deny the motion for en
banc consideration.
2

[Headnote 2]
We now turn to the petition for rehearing. Dow Chemical contends that a rehearing should
be granted because this court has misapprehended the legal principles of Restatement
(Second) of Torts 324A and has ill-advisedly imposed a duty on parent corporations to
supervise their subsidiaries. Dow Chemical asserts that our decision ignores or
misapprehends the decisions of other jurisdictions that have considered the negligent
undertaking claim against it, and also misapprehends the facts of this case. Dow Chemical
also maintains that this court has created a new tort imposing a retroactive duty on parent
corporations such as itself. Dow Chemical further contends that the majority did not identify
any affirmative negligent act committed by Dow Chemical, only omissions. Finally, Dow
Chemical argues that the majority overlooked the undisputed fact that between 1964 and
1976, Dow Corning commissioned outside laboratories to conduct additional testing on breast
implants and other silicone products.
Under our prior NRAP 40(c)(2) governing rehearing petitions, which applies here, this
court may entertain a petition for rehearing only [w]hen it appears that the court has
overlooked or misapprehended a material matter in the record or otherwise or [i]n such
other circumstances as will promote substantial justice. Pursuant to prior NRAP 40(c)(1),
[m]atters presented in the briefs and oral arguments may not be reargued in the petition for
rehearing, and no point may be raised for the first time on rehearing.
Having reviewed each of Dow Chemical's grounds for rehearing, we conclude that Dow
Chemical has not demonstrated that the participating members of the court overlooked or, in
their view, misapprehended the law or the facts regarding the negligent undertaking claim.
__________

2
Dow Chemical also contends that under the former NRAP 40(a), because rehearings were necessarily en
banc, it follows that its petition for rehearing should be considered by the en banc seven-justice court. Rule 40A,
however, was adopted and specifically tailored for the new seven-justice court and panel system. Accordingly,
Rule 40A provides for an en banc reconsideration of a panel's decision. As we stated before, NRAP 40A does
not apply to Dow Chemical's rehearing petition. We therefore proceed under the previous practice, which
provided for the five-justice court to consider rehearing petitions such as the one that Dow Chemical has filed.
undertaking claim. Accordingly, we deny this petition. NRAP 40(c).
3

____________
115 Nev. 17, 17 (1999) Davis v. State
AZELL DAVIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29587
February 17, 1999 974 P.2d 658
Proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
Defendant who was convicted, pursuant to a guilty plea, of burglary, filed post-conviction
petition for a writ of habeas corpus. The district court denied petition, and defendant
appealed. The supreme court held that: (1) defendant's guilty plea agreement did not waive
his right to appeal; but (2) defendant was adequately informed of his right to appeal when he
plead guilty; (3) defense counsel was not ineffective for failing to perfect a direct appeal
without defendant's consent; and (4) failure to challenge habitual criminal adjudication in
direct appeal waived issue in post-conviction proceeding.
Affirmed.
Azell Davis, in Proper Person.
Clark County, for Respondent.
1. Criminal Law.
Defendant's guilty plea agreement did not waive his right to appeal from his burglary conviction, where
plea memorandum stated that defendant waived his right to appeal, except if appeal was based upon
reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceeding.
Grounds for appeal recited in memorandum were identified as legitimate grounds for directly appealing
conviction based on guilty plea in statute establishing limited right to appeal from such convictions. NRS
177.015(4).
__________

3
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal. The Governor appointed the Honorable Jack Ames, District Judge, to sit in the place of The Honorable
Cliff Young.
115 Nev. 17, 18 (1999) Davis v. State
2. Criminal Law.
Defendant was adequately informed of his right to appeal when he pleaded guilty to burglary charge,
where plea memorandum informed defendant of scope of his right to appeal. NRS 177.015(4).
3. Criminal Law.
Defense counsel was not ineffective for failing to perfect a direct appeal from defendant's burglary conviction without defendant's
consent. Counsel did not have duty to file notice of appeal unless defendant consented to non-filing. U.S. Const. amend. 6.
4. Attorney and Client.
Burden is on the defendant to indicate to his attorney that he wishes to pursue an appeal. Attorney is not obliged to obtain consent
not to file the appeal where the defendant does not express a desire to challenge the proceedings.
5. Attorney and Client.
If the defendant does express a desire to appeal, counsel is obligated to file the notice of appeal on the defendant's behalf.
6. Habeas Corpus.
Petitioner's failure to challenge habitual criminal adjudication in a direct appeal from his burglary conviction waived the issue in
his post-conviction habeas proceeding. NRS 34.810.
Before Maupin, Agosti and Becker, JJ.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. On February 7, 1996, the district court
convicted appellant, pursuant to a guilty plea, of burglary. The district court adjudicated
appellant a habitual criminal pursuant to NRS 207.010 and sentenced him to serve a term of
60 to 150 months in the Nevada State Prison. Appellant did not file a direct appeal.
On August 22, 1996, appellant filed a timely post-conviction petition for a writ of habeas
corpus in the district court. The state opposed the petition. On October 11, 1996, the district
court denied appellant's petition. This appeal followed.
In his petition, appellant contended that his counsel was ineffective for failing to inform
him regarding his right to appeal and for failing to perfect a direct appeal from the judgment
of conviction without his consent. He also challenged the legality of the adjudication of
habitual criminal status and contended that the state had not produced certified copies of the
prior judgments of conviction as required by NRS 207.010. The district court denied the
petition on the ground that appellant had waived his right to a direct appeal pursuant to the
guilty plea agreement and that therefore his counsel's performance had been reasonable.
115 Nev. 17, 19 (1999) Davis v. State
[Headnote 1]
The guilty plea memorandum contained the following language:
By entering my plea of guilty, I understand that I am waiving and forever giving up
the following rights and privileges:
. . . .
6. The right to appeal the conviction, with the assistance of an attorney, either
appointed or retained, unless the appeal is based upon reasonable constitutional,
jurisdictional or other grounds that challenge the legality of the proceedings and except
as otherwise provided in subsection 3 of NRS 174.035.
This court has held that a knowing and voluntary unequivocal waiver of the right to appeal
made pursuant to a plea bargain is valid and enforceable. Cruzado v. State, 110 Nev. 745, 879
P.2d 1195 (1994).
We conclude, however, that appellant here did not unequivocally waive his right to a
direct appeal. Appellant did not waive his right to an appeal based upon reasonable
constitutional, jurisdictional or other grounds that challenge the legality of the proceedings.
These are the exact grounds identified in NRS 177.015(4) as legitimate grounds for direct
appeal when the conviction is based upon a guilty plea. The statute clearly provides for a right
to appeal, albeit limited. Quoting the statutory language in a plea agreement merely informs
the defendant of the limitations of a potential appeal; it alerts the defendant who pleads guilty
to the permissible scope of his appeal as a matter of law. Given that the statute expressly
provides for an appeal based on reasonable constitutional, jurisdictional and other grounds
which challenge the legality of the proceedings, it is clear that the defendant has a statutory
right to appeal from a judgment of conviction based upon a guilty plea. See also Franklin v.
State, 110 Nev. 750, 751-52, 877 P.2d 1058, 1059 (1994). The language offered in the plea
memorandum is not a waiver of a right to appeal. Accordingly, the district court erred in
denying appellant's petition on that basis.
[Headnote 2]
However, based on the above discussion, we also conclude that appellant's contention that
he was not informed of his right to appeal is belied by the record. See Hargrove v. State, 100
Nev. 498, 686 P.2d 222 (1984). As noted, the plea memorandum informs the defendant of the
scope of his right to appeal, and thereby informs him that he has a right to appeal.
Accordingly, appellant's contention that his counsel was ineffective for failing to inform him
that he had a right to appeal lacks merit. See id., and Bryant v. State, 102 Nev. 268, 721 P.2d
364 (1986).
115 Nev. 17, 20 (1999) Davis v. State
[Headnote 3]
Appellant also contended that his counsel was ineffective for failing to perfect a direct
appeal without his consent. He suggests that an attorney has a duty to file a notice of appeal
unless the client expressly consents to the non-filing. Appellant relies on language in this
court's decision in Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994), in which this court
stated: The failure to obtain Lozada's consent not to pursue an appeal would amount to
unreasonable conduct. Lozada, 110 Nev. at 354, 871 P.2d at 947. In Lozada this court
concluded that the failure to inform a defendant regarding his right to appeal could satisfy the
unreasonable conduct requirement for purposes of establishing a claim of ineffective
assistance of counsel. Id. at 356, 871 P.2d at 948; see also Strickland v. Washington, 466
U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Warden v. Lyons, 100 Nev. 430, 683
P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985).
[Headnotes 4, 5]
Appellant does not allege that he asked counsel to file the appeal and that counsel failed to
do so; he suggests instead that counsel was obliged to secure his consent not to file the
appeal. We disagree; Lozada does not stand for this proposition. [A]n attorney has a duty to
perfect an appeal when a convicted defendant expresses a desire to appeal or indicates
dissatisfaction with a conviction. Lozada, 110 Nev. at 354, 871 P.2d at 947 (citing Fawaz v.
State, 105 Nev. 692, 783 P.2d 425 (1989)); see also Didomenico v. State, 110 Nev. 861, 864,
877 P.2d 1069, 1070 (1994) ([T]rial counsel has an obligation to inform a defendant of the
right to appeal and to perfect that appeal if the defendant wishes to challenge the judgment of
conviction.). The burden is on the client to indicate to his attorney that he wishes to pursue
an appeal. The attorney is not obliged to obtain consent not to file the appeal where the client
does not express a desire to challenge the proceedings. However, if the client does express a
desire to appeal, counsel is obligated to file the notice of appeal on the client's behalf.
[Headnote 6]
Finally, appellant's challenge to the validity of the district court's decision to adjudicate
appellant a habitual criminal is without merit. Appellant failed to raise this issue in a direct
appeal and has therefore waived the claim. NRS 34.810; Franklin v. State, 110 Nev. 750, 877
P.2d 1058 (1994). Moreover, the record indicates that the state produced certified copies of
the prior judgments of conviction and satisfied the requirements of NRS 207.010. See
Hargrove, 100 Nev. at 503, 686 P.2d at 225 {"A defendant seeking post-conviction relief is
not entitled to an evidentiary hearing on factual allegations belied or repelled by the
record.").
115 Nev. 17, 21 (1999) Davis v. State
(A defendant seeking post-conviction relief is not entitled to an evidentiary hearing on
factual allegations belied or repelled by the record.). Appellant is not entitled to relief on this
claim.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant is not entitled to relief and that briefing and oral argument are unwarranted. See
Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077
(1976). Accordingly, we affirm the decision of the district court in denying appellant's
petition.
1

____________
115 Nev. 21, 21 (1999) Jackson v. State
JAMES W. JACKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29254
JAMES W. JACKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29256
March 16, 1999 973 P.2d 241
Proper person appeals from orders of the district court dismissing appellant's
post-conviction petitions for writs of habeas corpus. Eighth Judicial District Court, Clark
County; Carl J. Christensen, Senior Judge.
Inmate brought post-conviction petitions for writs of habeas corpus relating to two
convictions for which inmate had completed serving the sentences fourteen years earlier. The
district court dismissed the petitions. Inmate appealed. The supreme court held that the trial
court lacked jurisdiction to issue writs of habeas corpus for prior convictions for which the
inmate had already completed his sentences.
Affirmed.
James W. Jackson, Ely, in Proper Person.
1. Habeas Corpus.
A district court may not issue a writ of habeas corpus if the postconviction petitioner filed the
petition challenging the validity of a conviction after having completed the sentence
for the challenged conviction.
__________

1
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 conclude that the relief
requested is not warranted.
conviction petitioner filed the petition challenging the validity of a conviction after having completed the
sentence for the challenged conviction. Const. art. 6, 6(1); NRS 34.724(1).
2. Habeas Corpus.
Allowing a petitioner to file a post-conviction habeas corpus petition to challenge a judgment of conviction, after the petitioner has
already completed service of the sentence imposed pursuant to that conviction, undermines the varied interests in the finality of
criminal convictions. Const. art. 6, 6(1); NRS 34.724(1).
3. Habeas Corpus.
District court lacked juridiction to issue writs of habeas corpus fourteen years after inmate had completed his sentences for two
prior convictions, though the inmate was confined for a new offense at the time he filed his petitions for writs of habeas corpus. Const.
art. 6, 6(1); NRS 34.724(1).
Before Young, Shearing and Leavitt, JJ.
OPINION
Per Curiam:
These are proper person appeals from orders of the district court dismissing appellant's
post-conviction petitions for writs of habeas corpus. In the interests of judicial economy, we
elect to consolidate these appeals for disposition. NRAP 3(b).
On November 14, 1975, the district court convicted appellant, pursuant to guilty pleas, of
one count of robbery in district court case no. C29678 and one count of grand larceny in
district court case no. C29225. The district court sentenced appellant to serve a term of eight
years in district court case no. C29678 and a concurrent term of five years in district court
case no. C29225. Appellant did not appeal from his convictions. In 1982, appellant completed
serving both sentences.
1

On March 19, 1996, approximately fourteen years after appellant had completed serving
his sentences for the 1975 convictions, appellant filed a proper person post-conviction
petition for a writ of habeas corpus in each district court case. The state opposed the petitions.
Appellant's petitions were dismissed by separate orders of the district court. Appellant's
subsequent appeals are docketed in this court as Docket Nos. 29254 and 29256.
In his petitions, appellant challenged the validity of his 1975 convictions. Appellant
argued that he was deprived of his right to an appeal from the 1975 convictions because he
was not advised in either case that he possessed a right to appeal. See Lozada v. State, 110
Nev. 349, 871 P.2d 944 (1994). Appellant indicated that he was currently serving a term of
life without the possibility of parole in the Nevada State Prison in district court case no.
C770S5.
__________

1
The district court made a finding of fact that appellant completed serving these sentences on March 10,
1982.
that he was currently serving a term of life without the possibility of parole in the Nevada
State Prison in district court case no. C77085. Pursuant to NRS 207.010, the 1975
convictions were used to enhance his sentence in district court case no. C77085.
[Headnotes 1, 2]
The Nevada Constitution provides that the district courts have the power to issue writs of
habeas corpus on petition by . . . any person who is held in actual custody in their respective
districts, or who has suffered a criminal conviction in their respective districts and has not
completed the sentence imposed pursuant to the judgment of conviction. Nev. Const. art. 6,
6(1) (emphasis added); see also NRS 34.724(1) (Any person convicted of a crime and
under sentence of death or imprisonment who claims that the conviction was obtained . . . in
violation of the Constitution of the United States or the constitution or laws of this state . . .
may . . . file a post-conviction petition for a writ of habeas corpus to obtain relief from the
conviction . . . .); see generally Maleng v. Cook, 490 U.S. 488, 492 (1989) (stating that the
in custody requirement for purposes of federal habeas has never been extended to the
situation where a habeas petitioner suffers no present restraint from a conviction) (emphasis
added). Therefore, a district court may not issue a writ of habeas corpus if the post-conviction
petitioner filed the petition challenging the validity of a conviction after having completed the
sentence for the challenged conviction.
2

[Headnote 3]
We conclude that the district court did not err in dismissing appellant's petitions. In 1996,
when appellant filed the instant petitions challenging his 1975 convictions, he had completed
the sentences imposed pursuant to the 1975 judgments of conviction. The fact that he was
confined at the time he filed his habeas corpus petitions, pursuant to a later judgment of
conviction, is of no consequence to his present attempt to challenge his 1975 convictions. His
present confinement for another conviction does not alter the jurisdictional requirement of the
Nevada Constitution that a petitioner must not have completed service of the sentence for the
conviction he seeks to challenge at the time he files his petition challenging that conviction.
Appellant filed his habeas corpus petitions fourteen years after he had completed service
of the 1975 sentences.
__________

2
Moreover, this court has previously recognized that [h]abeas corpus petitions that are filed many years after
conviction are an unreasonable burden on the criminal justice system. . . . [T]here must exist a time when a
criminal conviction is final. Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269 (1984). Allowing a
petitioner to file a post-conviction habeas corpus petition to challenge a judgment of conviction, after the
petitioner has already completed service of the sentence imposed pursuant to that conviction, undermines the
varied interests in the finality of criminal convictions.
petitions fourteen years after he had completed service of the 1975 sentences. Accordingly,
we affirm the orders of the district court in dismissing appellant's petitions.
____________
115 Nev. 24, 24 (1999) Hansen v. Universal Health Servs.
RICHARD HANSEN, Appellant, v. UNIVERSAL HEALTH SERVICES OF NEVADA,
INC., dba VALLEY HOSPITAL MEDICAL CENTER; JOHN THALGOTT, M.D.,
and JOHN THALGOTT, M.D., INC., Respondents.
No. 25848
March 24, 1999 974 P.2d 1158
Appeal from a judgment entered pursuant to a jury verdict in a medical malpractice case.
Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Patient brought medical malpractice action against physician and hospital, seeking
recovery for injuries associated with postsurgical infection. The district court entered verdict
for physician and hospital, and patient appealed. The supreme court, Shearing, J., held that:
(1) refusal to admit evidence that surgical procedure used to treat patient's chronic back pain
was not approved by the federal Food and Drug Administration (FDA) was not abuse of
discretion; (2) State Industrial Insurance System (SIIS) survey of the medical complications
experienced by physician's patients who had same back surgery as patient was properly
excluded as more prejudicial than probative; (3) refusal to admit Department of Health and
Human Resources (HHR) report identifying inadequacies in hospital's infection control
practices and procedures was not abuse of discretion; and (4) refusal to allow patient's
untimely-designated experts to testify was not abuse of discretion.
Affirmed.
Rose, C. J., dissented.
Robert D. Walker and Gerald F. Neal, Las Vegas, for Appellant.
Pearson, Patton, Shea, Foley & Kurtz, Las Vegas, for Respondent Universal Health
Services of Nevada.
Mayor & Horner, Ltd., and Janiece S. Marshall, Las Vegas, for Respondent Thalgott.
1. Physicians and Surgeons.
In medical malpractice action, refusal to admit evidence that surgical procedure used to treat
patient's chronic back pain was not approved by the federal Food and Drug
Administration {FDA) was not abuse of discretion, where procedure had been approved
for parts of body other than back, FDA did not prohibit performance of procedure on
back, and patient had been informed prior to surgery that procedure was not FDA
approved and patient consented to surgery anyway.
cal procedure used to treat patient's chronic back pain was not approved by the federal Food and Drug
Administration (FDA) was not abuse of discretion, where procedure had been approved for parts of body
other than back, FDA did not prohibit performance of procedure on back, and patient had been informed
prior to surgery that procedure was not FDA approved and patient consented to surgery anyway.
The supreme court will not overturn the district court's exclusion of relevant evidence absent an abuse of discretion.
3. Evidence.
In medical malpractice action, State Industrial Insurance System (SIIS) survey of the medical complications experienced by
physician's patients who had same back surgery as patient was properly excluded as more prejudicial than probative. NRS 48.035(1).
4. Evidence.
In medical malpractice action, refusal to admit Department of Health and Human Resources (HHR) report identifying
inadequacies in hospital's infection control practices and procedures was not abuse of discretion. Report would have confused jury and
diverted its attention to collateral matters.
5. Pretrial Procedure.
The orders of the district court regarding the timing of discovery supersede statute governing designation of additional expert
witnesses. NRCP 26(b)(5)(B).
6. Trial.
A trial court is vested with discretion to simplify the issues and limit the number of expert witnesses allowed to testify.
In medical malpractice action, refusal to allow patient's untimely-designated experts to testify was not abuse of discretion, where
patient submitted second designation of experts six months after deadline set by trial court for such designation, even though
submission occurred two months prior to trial. NRCP 26(b)(5)(B).
OPINION
By the Court, Shearing, J.:
Appellant Richard Hansen (Hansen) suffered a severe and debilitating infection after
respondent Dr. John M. Thalgott (Dr. Thalgott) attached a steel plate to Hansen's spine,
using bone screws (the surgery). The surgery was performed at Valley Hospital Medical
Center (Valley Hospital), which was owned by respondent Universal Health Services of
Nevada, Inc. (UHS). Hansen filed a medical malpractice action against Dr. Thalgott and
UHS, alleging that they were negligent. A jury found in favor of Dr. Thalgott and UHS.
Hansen appeals, arguing the district court abused its discretion in making evidentiary rulings
which prevented him from substantiating his case.
FACTS
In March 1987, Hansen sustained a back injury. After a short period of physical therapy,
Hansen was referred to Dr. Thalgott for treatment. Thereafter, Dr. Thalgott performed spinal
plate fixation surgery on Hansen, attaching a steel plate to his spine using bone screws. The
surgery was performed at Valley Hospital, which UHS owned at the time of Hansen's surgery.
Following the surgery, Hansen's incision became severely infected. According to UHS,
Hansen had experienced several episodes of bowel incontinence that caused the introduction
of fecal material into Hansen's wound, resulting in gross contamination. Hansen's medical
expert testified that Hansen's infection was either caused by Valley Hospital's failure to
prevent this fecal contamination or by an unusually large dose of steroids that Dr. Thalgott
prescribed for Hansen to reduce inflammation. In contrast, Dr. Thalgott and several other
medical experts testified that Hansen's infection was not attributable to fecal contamination or
the steroid treatment, but instead was caused by necrosis of the muscle tissue adjacent to the
wound site.
Hansen was released from Valley Hospital, but his infection became so severe that he was
readmitted, and was eventually transferred to the University Medical Center. At University
Medical Center, Hansen underwent a series of operations on the musculature of his back.
Eventually, the steel plate had to be surgically removed because Hansen's infection persisted.
After removal of the steel plate, Hansen testified that he continued to suffer from debilitating
pain and infection that greatly restricted his normal activities. Additionally, Hansen incurred
medical expenses that exceeded $700,000.00.
DISCUSSION
Exclusion of Lack of FDA-Approval
[Headnote 1]
Hansen's first allegation of reversible error is that the district court excluded evidence of
the fact that the surgical procedure Dr. Thalgott performed was not approved by the Food and
Drug Administration (FDA). Several evidentiary documents that Hansen sought to introduce
referred to the fact that the surgery was not approved by the FDA, including Hansen's hospital
chart, his consent form, and an article authored by Dr. Thalgott. The district court redacted
any mention of the non-FDA approved status from these items of evidence, finding it was
irrelevant and would confuse the jury. The district court also prohibited any witnesses at trial
from referring to the non-FDA approved status of the surgery.
[Headnote 2]
The district court's refusal to allow evidence of the fact that the surgical procedure
performed had not been approved by the FDA was within its discretion. Although the
implantation of the steel plate on the spine had not been specifically approved by the FDA,
and the consent form Hansen signed included this information, Hansen concedes that the
FDA does not prohibit implantation of the device in the human body. The FDA has approved
implantation of the device in other locations of the body. In support of admission, Hansen
argued that a different standard of care is required when a procedure is not FDA-approved.
The district court correctly rejected this argument. It found that the lack of FDA approval did
not change the standard of negligence and that inclusion in evidence of the FDA's role would
confuse the jury. This exclusion was not an abuse of discretion. Even though a contrary
finding would also have been within the court's discretion with regard to the standard of care
upon which the jury was instructed, this court will not overturn the district court's exclusion
of relevant evidence absent an abuse of discretion. Jeep Corporation v. Murray, 101 Nev.
640, 646, 708 P.2d 297, 301 (1985).
Exclusion of SIIS Survey
[Headnote 3]
Hansen argues that the district court erroneously excluded a March 1989, State Industrial
Insurance System survey of the medical complications experienced by Dr. Thalgott's patients
who had also had the surgery. Hansen alleged that the SIIS survey was relevant to establish
that Hansen's injuries were caused by Dr. Thalgott's negligence.
It appears that the district court excluded the SIIS report under NRS 48.036(1) because the
probative value was substantially outweighed by the danger of confusing the issues and
misleading the jury. The district court quoted from Chowdhry v. NLVH, Inc., 109 Nev. 478,
485, 851 P.2d 459, 463 (1993), in which this court stated that where evidence is marginally
relevant and could inject collateral issues which would divert the jury from the real issues in
the case, exclusion is proper.
Exclusion of the SIIS survey, which consisted of brief descriptions of numerous other
cases in which Dr. Thalgott performed surgery, was appropriate. The district court could
properly find that injecting these other cases into Hansen's trial would prolong the trial,
confuse the issues and divert the jury from Hansen's case to collateral matters. Dr. Thalgott
also argued that the report was inaccurate in some respects and unreliable, having been
prepared by non-medical personnel who were motivated toward reaching a particular
result.
pared by non-medical personnel who were motivated toward reaching a particular result.
Under the circumstances, the district court's ruling was correct.
Health and Human Resources Report
[Headnote 4]
Hansen alleges that the district court erred in excluding from evidence the Nevada State
Department of Health and Human Resources Report (HHR Report) identifying
inadequacies in Valley Hospitals infection control practices and procedures.
Although Hansen now alleges that the district court's order is error, it appears in the
transcript of the hearing on UHS's motion in limine that Hansen's counsel stipulated that he
would not introduce the HHR Report unless the defense opened up the topic. Furthermore,
the district court was within its discretion in refusing to admit a report of unrelated infections
at Valley Hospital for the same reasons it denied admission of the SIIS survey, namely,
confusing the issues and diverting the jury with collateral matters.
Additional Expert Witnesses
In October and November 1991, the parties each filed their designation of experts. The
court had set a deadline for the designation of experts for January 21, 1992, pursuant to the
Discovery Commissioner's Report and Recommendation. The trial was scheduled for
February 22, 1993, but was continued to September 1993. In July 1993, Hansen submitted a
second designation of experts that included three new experts. Dr. Thalgott and UHS objected
to the additional designation as untimely and the district court apparently agreed, disallowing
the additional witnesses. Hansen argues that his designation of experts was timely because it
was submitted within the time limits imposed by NRCP 26(b)(5)(B) which provides in
relevant part that:
[expert witness lists must be exchanged] 20 days after the date of service of demand on
the party (3 days shall be added to the prescribed time if served by mail . . .) or 70 days
prior to the date set for the commencement of trial, whichever is later.
[Headnotes 57]
However, the orders of the district court regarding the timing of discovery supersede
NRCP 26(b)(5)(B). Furthermore, a trial court is vested with discretion to simplify the issues
and limit the number of expert witnesses allowed to testify. Jeep Corporation, 101 Nev. at
646, 708 P.2d at 301. It does not appear that Hansen was precluded from raising any relevant
issues and it appears that either the defendants would have been prejudiced or the trial date
would have had to be continued once again to allow discovery if the new experts were to
testify.
would have had to be continued once again to allow discovery if the new experts were to
testify. Accordingly, we conclude that the district court did not abuse its discretion in refusing
to allow Hansen's untimely-designated experts to testify.
CONCLUSION
We conclude that the district court did not abuse its discretion in its evidentiary rulings,
and therefore we affirm the judgment of the district court.
1

Young and Maupin, JJ., concur.
Rose, C. J., dissenting:
I agree with the majority that the district court has discretion to exclude relevant evidence
that is highly prejudicial. See NRS 48.035. However, the district court abuses its discretion
when it excludes critical evidence that the plaintiff needs to prove an essential element of his
disputed claim. See McCourt v. J.C. Penney Co., 103 Nev. 101, 103, 734 P.2d 696, 698
(1987) (where the facts are sharply disputed and the matter is tried to the jury, and there is
proper foundation shown, the court should allow the evidence).
Here, Hansen claimed that he did not give his informed consent for Dr. Thalgott to attach a
metal plate to Hansen's spine using bone screws, a medical procedure that had not been
approved by the FDA.
1
In support of his claim, Hansen proffered evidence that the words
non-FDA approved were handwritten on Hansen's informed consent form and noted
fourteen times on Hansen's medical chart. Despite the fact that this evidence was necessary to
prove that Dr. Thalgott did not adequately inform Hansen of the risks associated with the
procedure, the court redacted any references to the non-FDA approved status of Hansen's
medical procedure from his consent form, medical chart, and even went so far as to prohibit
any witness from mentioning the procedure's non-FDA approved status. Hansen could not
ask Dr. Thalgott why he added the non-FDA approved notation on the consent form, what
the significance was of a surgical procedure not being FDA approved, and what Dr. Thalgott
told Hansen of the risks involved in the non-FDA approved surgery when he made the
additional notation. Since Hansen's claim was that Dr. Thalgott performed an experimental
surgery on him without adequately informing him of the surgery and its risks, the
unedited consent and this cross-examination would have been highly relevant and
material.
__________

1

1
In fact, after Hansen's medical procedure, the FDA prohibited medical doctors from attaching this metal
plate to spines because of the risks associated with the procedure.
Hansen's claim was that Dr. Thalgott performed an experimental surgery on him without
adequately informing him of the surgery and its risks, the unedited consent and this
cross-examination would have been highly relevant and material. Essentially, because the
district court actually edited Hansen's consent form and medical charts, redacting out an
essential term, the jury got an artificial version of the consent process. I dissent because
altering a key term in a document that proves an essential issue in a case is an abuse of
discretion.
Additionally, the district court excluded a State Industrial Insurance System audit made in
the normal course of business that documented that only seven out of forty-five of Dr.
Thalgott's patients who had the same metal plate as Hansen attached to their spines recovered
enough to return to the workforce. I disagree with the majority that this evidence was
collateral and would confuse the issues in this case. This evidence was relevant
similar-act evidence admissible to prove that Dr. Thalgott's negligence caused Hansen's
severe and debilitating injuries. See Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415, 470 P.2d
135, 139 (1970) (evidence of subsequent, similar incidents is admissible to establish
causation). After all, an objective government agency report noting that Dr. Thalgott's
non-FDA approved steel plate procedure was successful only approximately fifteen percent of
the time is highly relevant as to whether he acted within the standard of care. This statistical
evidence is not collateral, and thus the district court abused its discretion in preventing
Hansen from telling the jury about the other thirty-seven times Dr. Thalgott had performed
this non-FDA approved procedure, and failed to return his patient to the workforce.
By its ruling, the district court prevented Hansen from mentioning an essential term on the
consent form that he signed and from discussing numerous complications sustained by Dr.
Thalgott's other patients who had the steel plate attached to their spine. By sanctioning these
rulings, the majority opinion is permitting the district court to selectively edit crucial
documents and preventing a party from establishing the major adverse consequences of a
medical procedure by using public records.
Accordingly, I respectfully dissent, and I would reverse the judgment and remand for a
new trial.
____________
115 Nev. 31, 31 (1999) Roever v. State
LERLENE EVONNE ROEVER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29647
March 24, 1999 979 P.2d 1285
Petition for rehearing of Roever v. State, 114 Nev. 867, 963 P.2d 503 (1998).
Defendant was convicted in the district court of first degree murder with use of deadly
weapon, and possession of controlled substance. Defendant appealed. The supreme court, 111
Nev. 1052, 901 P.2d 145 (1995), reversed and remanded for new trial. Defendant was
convicted in the district court of the same offenses, and she appealed. The supreme court, 114
Nev. 867, 963 P.2d 503 (1998), reversed and remanded for new trial. On state's petition for
rehearing, the supreme court held that the supreme court's earlier incorrect conclusion
regarding the circumstances under which audiotaped interview of defendant had been
introduced into evidence at trial to show specific prior bad acts did not warrant rehearing.
Petition denied.
Harry R. Gensler, Public Defender, and Harold Kuehn, Assistant Public Defender, Nye
County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District
Attorney, and Kirk D. Vitto, Deputy District Attorney, Nye County, for Respondent.
Criminal Law.
Supreme court's incorrect conclusion regarding the circumstances under which audiotaped interview of
defendant had been introduced into evidence at trial to show specific prior bad acts, which led supreme court
to conclude that the specific prior bad acts did not rebut evidence presented by defendant, was not a
misapprehension of a material matter warranting a rehearing of supreme court's decision reversing the
conviction and remanding for new trial, as the supreme court's decision had been based on substantial
independent grounds for excluding the specific prior bad acts. NRAP 40(c).
OPINION
Per Curiam:
The state has petitioned for rehearing of this court's decision reversing and remanding
appellant Roever's judgment of conviction.
115 Nev. 31, 32 (1999) Roever v. State
tion.
1
See Roever v. State, 114 Nev. 867, 963 P.2d 503 (1998). The petition is opposed.
The state correctly asserts that this court's majority opinion misstated circumstances under
which an audiotaped interview was introduced into evidence.
2
Specifically, in discussing the
admission of evidence of specific prior bad acts later presented by the state to rebut certain
statements made by Roever on the audiotape, this court observed that the rebuttal evidence
should never have been introduced, in part because it did not rebut evidence presented by
Roever in her defense.
3

We acknowledge that the opinion incorrectly concluded that it was the state that first used
the tape in its case-in-chief. In fact, the audiotape was a defense exhibit; the state stipulated to
its introduction into evidence during its case-in-chief so that a witness would not have to be
recalled to testify later during the presentation of the case by the defense.
Nevertheless, this court's holding that the admission of the rebuttal evidence was
reversible error is also supported by additional substantial independent grounds discussed in
the opinion. Therefore, this court did not overlook or misapprehend any material matter
warranting rehearing.
4
Accordingly, we deny the petition for rehearing. NRAP 40(c).
5

__________

1
This petition was previously denied in an unpublished order of this court issued on November 25, 1998. We
have subsequently determined that our decision should be issued in a published opinion. Accordingly, we hereby
issue this opinion in place of a prior unpublished order denying this petition for rehearing.

2
Our prior opinion mischaracterized this evidence as a videotaped interview. In fact, the evidence was an
audiotape, not a videotape.

3
In actuality, the separate concurrences addressed this concern.

4
For this reason as well, we deny the state's motion of November 9, 1998, seeking leave to supplement its
petition for rehearing with additional argument.

5
This petition challenges a decision issued prior to the expansion of the court from five to seven justices on
January 4, 1999. Only those justices remaining on the court who previously heard this matter participated in this
decision.
____________
115 Nev. 33, 33 (1999) Schoels v. State
WILLIAM CHRISTOPHER SCHOELS, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 28086
March 24, 1999 975 P.2d 1275
On rehearing, appeal from a judgment of conviction, pursuant to a jury verdict, of one
count each of first-degree murder with use of a deadly weapon and possession of a firearm by
an ex-felon. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted of first-degree murder with use of deadly weapon and possession
of firearm by an ex-felon following jury trial in the district court and was sentenced to life
without parole. Defendant appealed. The supreme court, 114 Nev. 109, 966 P.2d 735 (1998),
affirmed. Defendant's petition for rehearing was granted. The supreme court held that the trial
court's error was not harmless in denying defendant's motion to plead guilty to count of
ex-felon in possession of firearm so that jury would not learn of his prior robbery conviction.
Rehearing granted; reversed and remanded for new trial.
Morgan D. Harris, Public Defender, and Michael L. Miller and Howard Brooks, Deputy
Public Defenders, Clark County, for Appellant.
1. Criminal Law.
Supreme court's misapprehension that murder defendant had been carrying the murder weapon during a
basketball game and pulled it out and shot the victim, where evidence actually showed that defendant walked
to edge of basketball court and retrieved the gun, did not involve a material fact regarding supreme court's
finding that prosecutor's dangerousness argument was proper, and thus, defendant was not entitled to a
rehearing regarding the prosecutor's argument. NRAP 40(c)(2)(i).
2. Criminal Law.
In deciding whether error is harmless or prejudicial, appellate court must consider such factors as whether the issue of innocence
or guilt is close, the quantity and character of the error, and the gravity of the crime charged.
3. Courts.
New rule, announced in supreme court's Brown decision, that any counts of ex-felon in possession of firearm must be severed so
that the jury trying the other counts will not be exposed to evidence of defendant's prior felony convictions applies only prospectively.
4. Criminal Law.
It was unfair to murder defendant not to allow him to plead guilty to count of ex-felon in possession of firearm so that
jury would not learn of his prior robbery conviction, where there was no evidence that state would have
been harmed.
to count of ex-felon in possession of firearm so that jury would not learn of his prior robbery conviction,
where there was no evidence that state would have been harmed.
5. Criminal Law.
Trial court's error was not harmless in denying murder defendant's motion to plead guilty to count of ex-felon in possession of
firearm so that jury would not learn of his prior robbery conviction, as issue of first-degree murder versus second-degree murder was
close because defendant and victim had argued for some time before the killing, and if jury had not known of defendant's prior
conviction it might have given him the benefit of the doubt and found him guilty of second-degree murder instead of first-degree
murder.
OPINION ON REHEARING
Per Curiam:
This court affirmed the conviction of appellant William Christopher Schoels for first-degree murder with use of a deadly weapon and
possession of a firearm by an ex-felon. Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998). Schoels has petitioned for rehearing. We
conclude that the petition has merit on one ground.
DISCUSSION
NRAP 40(c)(1) provides: Matters presented in the briefs and oral arguments may not be reargued in the petition for rehearing, and no
point may be raised for the first time on rehearing. This court may consider a rehearing if it appears that the court has overlooked or
misapprehended a material matter in the record or otherwise or in such other circumstances as will promote substantial justice. NRAP
40(c)(2).
1

This court did not overlook material facts
Three issues which Schoels asserts as grounds for rehearing involve alleged factual
misapprehensions by this court. First, he asserts that this court overlooked the most critical
fact in the record, a statement by the victim to Schoels, I'm going to nine you up, i.e., shoot
Schoels with a nine-millimeter gun. The court did not overlook anything material in this
matter. Our opinion noted that the victim threaten[ed] to return with a gun. Schoels, 114
Nev. at 983, 966 P.2d at 737.
__________

1
This opinion quotes the former version of NRAP 40 because the instant petition was filed before the rule
was amended, effective January 4, 1999.
[Headnote 1]
Second, Schoels points out this court incorrectly stated that he was carrying the murder
weapon in his pocket during a basketball game and pulled it out and shot the victim. We cited
this circumstance in concluding that the prosecutor's future dangerousness argument was
proper. Id. at 988, 966 P.2d at 740. The evidence actually showed that Schoels walked to the
edge of the basketball court and retrieved the gun from a location there. This
misapprehension was not material. Schoels fails to show how the actual facts work to his
favor. They still support an argument for future dangerousness and, if anything, contradict
even more strongly his argument of self-defense.
Third, Schoels contends that this court's opinion ignored evidence that the victim rushed
him and lifted him up. Schoels argues that by overlooking evidence that supported
self-defense, voluntary manslaughter, or second-degree murder, we were able to dismiss
errors which occurred in the trial as harmless.
[Headnote 2]
In deciding whether error is harmless or prejudicial, this court must consider such factors
as whether the issue of innocence or guilt is close, the quantity and character of the error, and
the gravity of the crime charged. Homick v. State, 112 Nev. 304, 316, 913 P.2d 1280, 1288
(1996). This court must determine that any errors are harmless beyond a reasonable doubt.
Evidence against the defendant must be substantial enough to convict him in an otherwise fair
trial, and it must be said without reservation that the verdict would have been the same in the
absence of error. Id. (citation omitted).
Schoels cites the testimony of two eyewitnesses, John Sayles and Henry Mark Johnson.
Schoels stresses that both stated that the victim rushed and grabbed Schoels and picked him
up in the air. However, Sayles stated that these actions by the victim did not occur until
Schoels had already fired at the victim, probably hitting him. Johnson stated that they did not
occur until Schoels pulled the gun and pointed it at the victim, although Johnson was not sure
if Schoels fired first or not. Johnson further testified that Schoels finished off the victim
with another shot. We conclude that our opinion did not overlook any facts from these
witnesses' testimony which were material to the issue of harmless error.
This court's analysis of the denial of appellant's guilty plea overlooked a material matter
Schoels claims finally that this court's analysis of the denial of his guilty plea was
materially flawed. We conclude that this claim has merit. Shortly before the trial, Schoels
moved the district court to allow him to plead guilty to the charge of ex-felon in possession
of a firearm so that the jury would not learn of his prior robbery conviction.
session of a firearm so that the jury would not learn of his prior robbery conviction. The court
denied it, saying that a change of plea was highly detrimental to the state. Schoels then
moved to sever the count of ex-felon in possession of a firearm, and the court denied it on
grounds of judicial economy. Schoels later objected unsuccessfully to the reading of the
information to the jury.
This court concluded that the district court did not abuse its discretion in refusing the
guilty plea. Our opinion focused on the trial court's discretion to accept or reject a guilty plea
and cited the trial court's authority to protect public interests, including assuring fairness to
the prosecution. Schoels, 114 Nev. at 984, 966 P.2d at 737. The opinion did not explain how
accepting the guilty plea would have harmed the state's case. Although we noted Schoels's
argument that the jury deliberated the murder charge while improperly influenced by
knowledge that he was an ex-felon, we did not discuss the merits of that argument.
In a supplement to his petition,
2
Schoels cites this court's recent decision, Brown v. State,
114 Nev. 1118, 967 P.2d 1126 (1998). In Brown, the information read in open court at the
beginning of the trial included charges of ex-felon in possession of a firearm along with other
counts. Because Brown failed to object contemporaneously to the reading, we declined to
consider his argument that exposing the jury to evidence of his prior felony convictions was
prejudicial. Nevertheless, we held that henceforth where the state seeks conviction on
multiple counts, any counts of ex-felon in possession of a firearm must be severed so that the
jury trying the other counts will not be exposed to evidence of a defendant's prior felony
convictions. Despite the legitimate interest in efficiency and judicial economy served by
joinder, we required severance to ensure fairness and avoid prejudice to the defendant. The
reasoning in Brown is apposite to this case but was overlooked in our original opinion.
[Headnote 3]
The state argues that Brown announces a new rule which applies only prospectively. New
rules apply prospectively unless they are rules of constitutional law, and then they apply
retroactively only under certain circumstances. Gier v. District Court, 106 Nev. 208, 212,
789 P.2d 1245, 1248 (1990). Brown announces a rule of law which is not constitutionally
demanded, and this court's opinion correctly indicates that the rule is to be applied
prospectively.
__________

2
Cause appearing, we direct the clerk of the court to file the supplement to the petition, received December
17, 1998.
[Headnote 4]
However, this case differs from Brown in two material ways which support reaching the
issue here independently of Brown. One, this court did not apply the new rule in Brown to
Brown because he failed to object at trial, but Schoels preserved this issue at the trial level by
seeking to plead guilty, by moving for severance, and by objecting to the reading of the
information in open court. Two, Brown did not seek to plead guilty to the charge of ex-felon
in possession of a firearm; he sought only a severance. By contrast, in this case the
justification for denying severancejudicial economywas initially completely absent.
Schoels sought first to plead guilty, which would not have necessitated a separate trial. On the
contrary, it would have saved the state the effort of proving the charge at all.
Although Schoels moved to change his plea when trial was imminent, the district court
cited no facts to support its finding that allowing Schoels to plead guilty would have harmed
the state, and we see none in the recordother than the state's loss of the prejudicial effect
arising from informing the jury that Schoels was an ex-felon. But this effect is unfair, as we
stated in Brown.
[Headnote 5]
In our original opinion, we discerned one error during the guilt phase: the jury instructions
failed to convey unambiguously that a direct physical assault on the defendant is not
necessary to find sufficient provocation for voluntary manslaughter. We deemed this error
harmless. Schoels, 114 Nev. at 985-86, 966 P.2d at 738. We must now consider the effect of
both this original error and the new one, the jury's exposure to evidence of the prior
robbery conviction, to determine without reservation whether the guilty verdict would have
been the same without the errors.
3
See Homick, 112 Nev. at 316, 913 P.2d at 1288. We must
consider whether the issue decided by the jury is close, the quantity and character of the error,
and the gravity of the crime charged. See id.
We conclude that the original error remains harmless because the evidence did not show
any provocation by the victim sufficient to excite an irresistible passion in a reasonable
person, a necessary element of voluntary manslaughter. See NRS 200.050. However, we
conclude that the new error undermines the reliability of the verdict of first-degree murder.
The evidence showed that Schoels and the victim had argued for quite some time and that the
victim threatened Schoels and harangued and insulted Schoels up to the moment that
Schoels pulled and fired the gun.
__________

3
A third error occurred in the penalty phase: the prosecutor improperly argued that it was necessary to
execute Schoels to protect future victims. Schoels, 114 Nev. at 989, 966 P.2d at 740. We also deemed this error
harmless. Because evidence of the prior conviction appears relevant and admissible at the penalty phase, we
conclude that the new error did not infect the penalty phase directly.
the victim threatened Schoels and harangued and insulted Schoels up to the moment that
Schoels pulled and fired the gun. Given these circumstances, the issue of first- versus
second-degree murder was close. The character of the error makes it possible that absent the
evidence of his prior conviction for robbery, the jury might have given Schoels the benefit of
the doubt and found him guilty of only second-degree murder rather than premeditated
first-degree murder. First-degree murder is the gravest of crimes. We conclude therefore that
Schoels's conviction on the count of first-degree murder must be reversed.
CONCLUSION
We grant rehearing, reverse the judgment of conviction in regard to first-degree murder,
and remand this case for retrial.
4

____________
115 Nev. 38, 38 (1999) Powers v. United Servs. Auto. Ass'n
WILLIAM R. POWERS, Appellant/Cross-Respondent, v. UNITED SERVICES
AUTOMOBILE ASSOCIATION and USAA CASUALTY INSURANCE
COMPANY, Respondents/Cross-Appellants.
No. 26794
April 2, 1999 979 P.2d 1286
Petition for rehearing, motions to appear as amicus curiae, and motions for leave to file
reply. Powers v. United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998).
Insured brought suit against marine insurer which denied claim for sinking of boat and
which had sought unsuccessful criminal prosecution of insured for fraud. The district court
entered judgment on jury verdict in favor of insured for breach of contract, bad faith and
breach of fiduciary duty. Both sides appealed. The supreme court, Rose, J., affirmed in part,
reversed in part and remanded. Insurer petitioned for rehearing. In denying rehearing, the
supreme court held that: (1) insured/insurer relationship was fiduciary in nature; (2)
substantial evidence supported jury finding that insured's misrepresentation was not material;
and (3) issue of materiality was for jury.
Petition for rehearing denied; motions to appear as amicus curiae granted;
motions for leave to file reply denied; prior opinion modified.
__________

4
This petition challenges an opinion that was issued prior to the expansion of the court from five to seven
justices on January 4, 1999. Only those justices remaining on the court who previously heard this matter
participated in this decision.
Brenske & Christensen, Las Vegas; Raleigh, Hunt & McGarry, Las Vegas, for
Appellant/Cross-Respondent.
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Howard, Moss,
Loveder, Strickroth & Walker, Santa Ana, California; Pearson & Patton, Las Vegas, for
Respondents/Cross-Appellants.
Bradley, Drendel & Jeanney, Reno, for Amicus Curiae Nevada Trial Lawyers Association.
Crowell, Susich, Owen & Tackes, Carson City, for Amici Curiae National Association of
Independent Insurers; Nevada Independent Insurance Agents; American Insurance
Association; Alliance of American Insurers; State Farm Mutual Automobile Insurance
Company; Farmers Insurance Exchange; Allstate Insurance Company; Union Plaza, Inc., dba
Jackie Gaughan's Plaza Hotel & Casino; Exber, Inc., dba El Cortez Hotel & Casino and
Western Hotel & Casino; E.G. & H., Inc., dba Las Vegas Club Hotel & Casino; Gaughan
South, dba Gold Spike Hotel & Casino; Associated Builders & Contractors, Sierra Nevada
Chapter; Nevada Manufacturers Association; Nevada Associated General Contractors;
Association of General Contractors; Nevada Public Agency Insurance Pool; Nevada Public
Agency Compensation Trust; Nevada Association of Counties; Nevada League of Cities;
Retail Association of Nevada; Las Vegas Chamber of Commerce; Nevada Motor Transport
Association; and Employers Insurance Company of Nevada.
Wadhams & Akridge, Las Vegas, for Amici Curiae National Association of Independent
Insurers; Nevada Independent Insurance Agents; American Insurance Association; Alliance
of American Insurers; Farmers Insurance Exchange; Allstate Insurance Company; Nevada
Public Agency Insurance Pool; Nevada Public Agency Compensation Trust; and Employers
Insurance Company of Nevada.
James E. Butler, General Counsel, Las Vegas, for Amici Curiae Harrah's Operating Co.,
Inc., dba Harrah's Reno, Harrah's Lake Tahoe, and Bill's Lake Tahoe; Harrah's Las Vegas,
Inc.; and Harrah's Laughlin, Inc.
Lemons, Grundy & Eisenberg, Reno, for Amicus Curiae State Farm Fire and Casualty Co.
Smith & Kotchka, Las Vegas, for Amicus Curiae Nevada Self-Insurers Association.
Jones Vargas, Reno, for Amicus Curiae Nevada Bankers Association.
1. Insurance.
Relationship between insured and insurer is akin to fiduciary relationship.
2. Insurance.
False representation is material if it concerns a subject reasonably relevant to insurer's investigation, and if a reasonable person
would attach importance to that fact.
3. Insurance.
Substantial evidence supported finding that insured's misrepresentation, in which he first told marine insurer that exhaust hose on
his boat had deteriorated before boat sank, when in fact insured had cut hose in attempt to stop water from siphoning into engine room
after attempts to reattach hose to engine failed, was not material. Insurer commenced fraud investigation and hired salvager to locate
and raise boat before statement was taken, based on boat's sinking in calm waters.
4. Fraud.
Materiality of misrepresentation is generally a question of fact in fraud suit, and only where reasonable minds cannot differ may
the issue be resolved as a matter of law.
5. Insurance.
Materiality of insured's misrepresentation, in which he first told marine insurer that exhaust hose on his boat had deteriorated
before boat sank, when in fact insured had cut hose in attempt to stop water from siphoning into engine room after attempts to reattach
hose to engine failed, presented issue of fact for jury.
6. Insurance.
Whether insured's misrepresentation, in which he initially told marine insurer in making claim for sinking of boat that exhaust
hose had deteriorated when he had actually cut hose in attempt to stop water from entering engine room, concerned cause of loss, and
thus was material misrepresentation, was issue of fact for jury, not one of law, since if loss was an accident, whether the hose was cut
or not made no difference.
OPINION
Per Curiam:
This is a petition by respondents United Services Automobile Association and USAA Casualty Insurance Company (USAA) for
rehearing of this court's opinion of July 16, 1998. See Powers v. United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998). A
multitude of entities
1
have sought leave to appear as amici in support of the rehearing petition,
and this court has received two amicus briefs, one on behalf of insurance entities and one
on behalf of business and government entities.
__________

1
These entities are National Association of Independent Insurers; Nevada Independent Insurance Agents;
American Insurance Association; Alliance of American Insurers; State Farm Mutual Automobile Insurance
Company; Farmers Insurance Exchange; Allstate Insurance Company; Union Plaza, Inc., dba Jackie Gaughan's
Plaza Hotel & Casino; Exber, Inc., dba El Cortez
support of the rehearing petition, and this court has received two amicus briefs, one on behalf
of insurance entities and one on behalf of business and government entities.
2

We have reviewed the petition for rehearing, and conclude that this court did not
misapprehend a material matter in the record or otherwise, nor would rehearing promote
substantial justice; therefore, rehearing is not warranted.
3
See former NRAP 40(c). However,
we take this opportunity to clarify our previous opinion in response to some of the concerns
raised by amici.
[Headnote 1]
First, in order to avoid any confusion created by footnote four of our previous majority
opinion, we state unequivocally that the jury instruction given by the district court on breach
of a fiduciary relationship was not error. Specifically, we vacate in its entirety footnote four of
the majority opinion. Additionally, we agree with amici that the fiduciary relationship
instruction should have been set forth in full in the majority opinion. Inasmuch as the
instruction was printed in full in Justice Maupin's concurrence, however, we decline to
modify the original majority opinion at this time. The full text of the jury instruction on
fiduciary relationship is as follows:
__________
Hotel & Casino and Western Hotel & Casino; E.G. & H., Inc., dba Las Vegas Club Hotel & Casino; Gaughan
South, dba Gold Spike Hotel & Casino; Sierra Nevada Chapter of Associated Builders & Contractors; Nevada
Bankers Association; Nevada Manufacturers Association; Nevada Associated General Contractors; Association
of General Contractors; Nevada Public Agency Insurance Pool; Nevada Public Agency Compensation Trust;
Nevada Association of Counties; Nevada League of Cities; Retail Association of Nevada; Employers Insurance
Company of Nevada; Las Vegas Chamber of Commerce; the Nevada Motor Transport Association; State Farm
Fire & Casualty Co.; Harrah's Las Vegas, Inc.; Harrah's Laughlin, Inc.; Harrah's Operating Co., Inc., dba
Harrah's Reno, Harrah's Lake Tahoe, and Bill's Lake Tahoe; and the Nevada Self-Insurers Association. Also,
Coast Hotels & Casinos, Inc., appears on the business entity brief, but filed a withdrawal of joinder in the
motion; however, it appears that Coast never actually filed a joinder in the motion to appear as one of the amici.

2
We conclude that the briefs of the amici were of some assistance in reviewing this matter. We therefore grant
the motions and joinders to appear as amici, and direct the clerk of the court to file the briefs received from the
amici. USAA also filed a motion for leave to respond to Powers' objections to certain of the joinders, and a
motion for leave to file a reply in support of rehearing. We conclude that additional briefing would not assist this
court, and so deny these motions. We direct the clerk of the court to return unfiled the Reply in Support of
Petition for Rehearing and the Response to Plaintiff's Objections to Latest' Joinders, both of which were
received on December 17, 1998.

3
NRAP 40 was amended effective January 4, 1999. Since the opinion in this case was filed before the
effective date of the amendment, the former version of NRAP 40 applies to this petition. See Dow Chemical Co.
v. Mahlum, 115 Nev. 13, 973 P.2d 842 (1999).
Plaintiff seeks damages for a breach of a fiduciary relationship between plaintiff and
defendant. The duty owed by an insurance company to an insured is fiduciary in nature.
In order to recover plaintiff must establish by a preponderance of the evidence that a
fiduciary relationship existed between plaintiff and defendant and that defendant
breached a duty to disclose known facts to plaintiff.
A fiduciary relationship exists when one has the right to expect trust and confidence in
the integrity and fidelity of another.
This special relationship exists in part because, as insurers are well aware, consumers
contract for insurance to gain protection, peace of mind and security against calamity.
(Emphasis added). It is clear that the jury was properly instructed that an insurer's duty to its
policyholder is, as USAA concedes, akin to a fiduciary relationship. As we specifically
stated in our previous opinion, our conclusion that this fiduciary relationship instruction was
not error does not equate to the creation of a new cause of action.
The amici also argue that the instruction on the materiality of appellant William Powers'
misrepresentation
4
was error. They assert that the current definition makes lying a win-win
proposition for an unscrupulous insured. According to the amici, if a misrepresentation is not
detected and investigated, then it is material, but the insurer will not know about the
misrepresentation and the insured profits by his false statement; on the other hand, if the
insurer investigates the statement, then it has not been misled and so the statement is not
material. The amici further argue that the insurer should not have to show detrimental
reliance on the false statement; by investigating, the insurer has relied.
[Headnotes 2, 3]
The amici appear to have misconstrued this court's opinion. As pointed out in our prior
opinion, the jury was instructed that a false representation is material if it concerns a
subject reasonably relevant to the insurance company's investigation, and if a reasonable
person would attach importance to that fact.' Powers, 114 Nev. at 698, 962 P.2d at 601. At
trial, ample evidence was introduced to support the jury's determination that Powers'
misrepresentation was not material, including evidence that USAA commenced the
investigation as a fraud investigation from the beginning based on the fact that the boat sank
in calm waters, before Powers' initial discussion with special investigator Wayne McNeely.
__________

4
Specifically, Powers first told USAA that an exhaust hose on his boat had deteriorated before the boat sank.
In fact, Powers had cut the hose in an attempt to stop a siphon effect.
before Powers' initial discussion with special investigator Wayne McNeely. Also, there was
evidence that USAA had hired Harry Davis, a local salvager, to locate the boat and
investigate recovery before Powers' initial discussion with McNeely. Therefore, substantial
evidence in the record supported a finding that Powers' statement was not reasonably
relevant to the investigation conducted by USAA in this case: USAA was not investigating
Powers' statement, rather, the investigation's tone was set before the statement was even
made. The jury was presented with the conflicting evidence, as well, and made its decision.
[Headnote 4]
The amici argue strenuously that the materiality of Powers' misrepresentations should have
been determined as a matter of law, and cite numerous cases from other jurisdictions in
support of their argument. However, an examination of these cases shows that some do not
stand for the proposition cited, one was later overruled, and those cases where materiality was
found as a matter of law involved very different facts.
5

__________

5
Several of the cases involved fire damage where arson was found by the fire marshal or an independent
investigator, and the insureds subsequently misrepresented their financial status in responding to the insurers'
questions calculated to determine a motive for arson. Sphere Drake Ins. Co. v. Zakloul Corp., No. Civ. 96-8123,
1997 WL 312217 (E.D. Pa. June 3, 1997) (unpublished disposition); Harary v. Allstate Ins. Co., 988 F. Supp. 93
(E.D.N.Y. 1997); Parasco v. Pacific Indem. Co., 920 F. Supp. 647 (E.D. Pa. 1996); Meyers v. State Farm Fire
and Cas. Co., 801 F. Supp. 709 (N.D. Ga. 1992); cf. Long v. Insurance Co. of North America, 670 F.2d 930
(10th Cir. 1982) (insured lied about having obtained a storage unit two days before an incendiary fire and
moving personal property to the unit). Similarly, in Cummings v. Farmers Ins. Exchange, 249 Cal. Rptr. 568 (Ct.
App. 1988), the insured lied about who had vandalized her house, when she knew it was a member of her
household.
Jung v. Nationwide Mutual Fire Insurance Company, 949 F. Supp. 353 (E.D. Pa. 1997), involved
misrepresentations in the application. A few of the cases cited by amici involved misrepresentations by insureds
concerning whether they had an insurable interest in the property for which benefits were sought. Wagnon v.
State Farm Fire and Cas. Co., 146 F.3d 764 (10th Cir. 1998); Woods v. Independent Fire Ins. Co., 749 F.2d
1493 (11th Cir. 1985). Two cases involved falsified loss statements. Home Insurance Company v. Hardin, 528
S.W.2d 723 (Ky. 1975) (insured submitted proof of loss statement listing property that had never existed); Wong
Ken v. State Farm Fire & Cas. Co., 685 So.2d 1002 (Fla. Dist. Ct. App. 1997) (insured submitted claims for
$85,000 in living expenses after Hurricane Andrew when insured actually stayed in damaged house). The court
in Joiner v. Auto-Owners Mutual Insurance Co., 891 S.W.2d 479 (Mo. Ct. App. 1994), stated the rule that the
issue of materiality was for the jury, and only where reasonable minds could not differ could it be determined as
a matter of law; the court then held that where the insureds made false statements concerning the cause of an
[Headnote 5]
Moreover, these cases almost uniformly recite the same rule applied in this case:
materiality is generally a question of fact, and only where reasonable minds cannot differ may
the issue be resolved as a matter of law. See Gerhauser v. N.B.& M. Ins. Co., 7 Nev. 174
(1871); Smith v. N.A.A.I. Co., 46 Nev. 30, 205 P. 801 (1922), cited in Powers, 114 Nev. at
697, 962 P.2d at 601. Here, reasonable minds have differed throughout the course of this case
about the significance of the evidence presented.
As we pointed out in our opinion, it is only in the rarest of cases [involving deception in
the claims process] that the materiality issue can be taken from the jury. Powers, 114 Nev. at
698, 962 P.2d at 601. Justice Maupin's concurrence aptly noted, this case was replete with
competent evidence, albeit disputed, of misconduct by both sides, . . . [and] the trial court
properly submitted the issue of the materiality of Mr. Powers' misrepresentations to the jury.
Id. at 707-08, 962 P.2d at 607 (Maupin, J., concurring).
[Headnote 6]
The amici's argument that materiality was shown as a matter of law because it was
intended to influence the investigation and because it related to the cause of the loss must also
fail. This court did not overlook any material matter in the record on this issue, which was
extensively briefed. Evidence was presented that indicated that USAA would have done
nothing different in its investigation had it known the hose was cut rather than deteriorated.
Additionally, whether the statement concerned the cause of the loss was an issue of fact, since
if the loss was an accident, whether the hose was cut or not made no difference. Again, both
sides presented their evidence on these issues, and the jury resolved the factual dispute in
Powers' favor. Rehearing is therefore not warranted.
We have considered the remaining arguments of USAA and amici and conclude that they
do not demonstrate that rehearing is warranted.
__________
incendiary fire, it was not reversible error for the trial court to omit the word material from the jury
instructions pertaining to false statements.
Interestingly, two of the cases cited by amici held that the issue of materiality was for the jury. Trzcinski v.
American Cas. Co., 953 F.2d 307 (7th Cir. 1992) (only where evidence that misrepresentation was material is
overwhelming should issue be taken from the jury); Chaachou v. American Central Insurance Company, 241
F.2d 889 (5th Cir. 1957). Finally, while Smith v. Insurance Company of North America, 213 F. Supp. 675 (M.D.
Tenn. 1962), held that materiality had been shown as a matter of law, this holding was reversed by the Sixth
Circuit on appeal. Trice v. Commercial Union Assurance Co., 334 F.2d 673 (6th Cir. 1964).
warranted. However, we add one final comment in response to the parade of horribles
detailed in the briefs of USAA and amici.
A central point in our prior opinion that seems to have escaped the notice of USAA and of
amici is that every case must be considered on its own facts. The evidence presented in this
case, while conflicting and hotly disputed, supported the jury's verdict. Not only was the
impropriety of USAA's denial of Powers' claim supported by substantial evidence, the jury
was shown that USAA manufactured evidence to support its denial of coverage, and then was
instrumental in sending this false evidence to the FBI, which resulted in Powers being
indicted and eventually acquitted at trial when the falsity of the evidence was uncovered. In
all likelihood, this evidence substantially influenced the jury's decision to award punitive
damages. In a different case, with different facts, a different result might have been reached.
Sweeping conclusions about new causes of action and a chilling effect on fraud investigations
are simply not warranted by the somewhat unique facts of this case.
For the aforementioned reasons, we deny rehearing.
6

____________
115 Nev. 45, 45 (1999) Libby v. State
ROGER LIBBY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31798
April 2, 1999 975 P.2d 833
Appeal from a district court order denying a new trial in a death penalty case. Sixth
Judicial District Court, Humboldt County; Jerry V. Sullivan, Judge.
Defendent was convicted in the district court of murder, and he appealed. The supreme
court, 109 Nev. 905, 859 P.2d 1050 (1993), affirmed, and defendant again appealed. Granting
certiorari, the United States Supreme Court, 516 U.S. 1037, 116 S. Ct. 691 (1996), vacated
judgment and remanded for further consideration. On remand, the supreme court, 113 Nev.
251, 934 P.2d 220 (1997), remanded. On remand, the district court denied a new trial, and
defendant appealed. The supreme court held that: (1) evidentiary hearing regarding claim of
gender discrimination in jury selection was not meaningless; (2) refusal to allow defendant to
question prosecutor about male venire persons who were examined during voir dire but not
ultimately seated on the jury was not manifestly wrong;
__________

6
115 Nev. 45, 46 (1999) Libby v. State
examined during voir dire but not ultimately seated on the jury was not manifestly wrong; (3)
inquiry into prosecutor's preemptory challenges of women in a different case was irrelevant;
(4) prosecutor was properly permitted to review his notes during evidentiary hearing; (5) trial
court's erroneous use of the word holistic, and its failure to use the word pretext, when
reviewing the evidence did not require reversal; and (6) evidence supported determination
that there was no purposeful discrimnation in prosecutor's use of preemptory challenges.
Affirmed.
[Rehearing denied July 13, 1999]
Steven G. McGuire, State Public Defender, James P. Logan, Chief Appellate Deputy, and
Harriet E. Cummings, Deputy Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; David Allison, District Attorney,
and Conrad Hafen, Deputy District Attorney, Humboldt County, for Respondent.
1. Jury.
In a gender discrimination challenge to jury selection, three steps are required: defendant must establish a
prima facie case of gender discrimination; the state must offer gender neutral reasons for the use of
peremptory challenges; and the trial court must evaluate the evidence to determine if the state's reasons
sufficiently rebut the prima facie case or whether the proffered reasons are merely a pretext for purposeful
gender discrimination. U.S. Const. amend. 14.
2. Criminal Law.
Evidentiary hearing regarding claim of gender discrimination in jury selection was not meaningless, so as to warrant a new trial,
even though almost eight years had passed since the jury selection. While prosecutor was unable to remember every detail, such as
each potential juror's clothing or exact demeaner, the defense had ample opportunity to cross-examine the prosecutor to challenge both
his credibility and his memory, and the determination that he could sufficiently recall and articulate his reasons for exercising his
peremptory challenges was not an abuse of discretion.
3. Criminal Law.
Trial court's decision to admit or exclude evidence rests within its sound discretion and will not be disturbed unless it is manifestly
wrong.
4. Criminal Law.
Refusal to allow defendant asserting claim of gender discrimination in jury selection to question prosecutor about male venire
persons who were examined during voir dire but were not ultimately on the jury was not manifestly wrong, despite claim that the
inquiry would have tested whether prosecutor could independently recall the voir dire process, and whether prosecutor questioned men
in the same manner as women who were excused, which would bear on issue of pretext. Defendant sufficiently tested
prosecutor's memory, and stricken women could not be appropriately compared with men who were not
seated on jury.
115 Nev. 45, 47 (1999) Libby v. State
ciently tested prosecutor's memory, and stricken women could not be appropriately compared with men who
were not seated on jury.
5. Jury.
If a stricken juror shares with a seated juror the same characteristics that the prosecutor offers as a gender neutral reason for
exclusion, this is a factor to determine whether the neutral reasons were a pretext for discrimination.
6. Jury.
Inquiry into prosecutor's peremptory challenges of women in a different case, which allegedly would have shown that prosecutor
systematically excluded women from juries, was irrelevant and properly precluded. Prosecutor may have had a different trial strategy
and different reasons for using his peremptory challenges at each trial.
7. Jury.
Prosecutor was preperly [properly] permitted to review his notes during evidentiary hearing regarding claim of gender
discrimination in jury selection, which had taken place nearly eight years earlier, to refresh his memory, despite claim the prosecutor in
fact did not remember anything, even after reviewing his notes, but instead had made up his reasons for excusing women based on his
review of transcripts and notes, not based on his independent recollection of the jury selection. Trial court believed prosecutor when
prosecutor testified that he remembered his reasons for exercising the peremptory challenges. NRS 50.125.
8. Criminal Law.
Trial court's erroneous use of the word holistic, instead of the proper phrase totality of the relevant facts, when reviewing the
evidence presented in a jury discrimination challenge did not require reversal. Court clearly articulated that it viewed all the facts and
testimony presented in the record and at the hearing, which was exactly what it was required to do.
9. Criminal Law.
Trial court's failure to use the word pretext in its evaluation of the evidence when reviewing a jury discrimination challenge did
not require reversal. Court evaluated the evidence and determined that state's gender-neutral reasons were sufficient to prove that no
purposeful discrimination existed, and inherent in such an evaluation was a review of whether the state's reasons were a mere pretext
for purposeful discrimination.
10. Jury.
Trial court should clearly spell out a three-step analysis when deciding a jury discrimination challenge. The three steps are as
follows: defendant must establish a prima facie case of gender neutral reasons for the use of peremptory challenges; and the trial court
must evaluate the evidence to determine if the state's reasons sufficiently rebut the prima facie case or whether the proffered reasons are
merely a pretext for purposeful gender discrimination.
11. Constitutional Law; Jury.
Legitimate reason for excluding a juror is not a reason that makes sense, but a reason that does not deny equal protection. Unless a
discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed neutral. U.S. Const. amend. 14.
12. Jury.
Evidence supported determination that there was no purposeful discrimination in the prosecutor's use of peremptory challenges,
despite defendant's claim of gender discrimination in prosecutor's use of six of his eight peremptory
challenges on women.
115 Nev. 45, 48 (1999) Libby v. State
defendant's claim of gender discrimination in prosecutor's use of six of his eight peremptory challenges on
women. Prosecutor explained that each of the excluded women expressed at least some hesitancy in
imposing the death penalty and that he did not believe further voir dire examination alleviated that hesitancy,
and trial court was in the best position to evaluate prosecutor's credibility and the excused jurors' demeanor
and answers. U.S. Const. amend. 14.
13. Criminal Law.
Trial court's evaluation of whether purposeful discrimination in jury selection exists will be given great deference by reviewing
court. Trial court's findings will not be overturned unless they are clearly erroneous.
Before the Court En Banc.
OPINION
Per Curiam:
FACTS
On September 22, 1988, Charles Beatty's and James Robertson's dead bodies were found in the desert near Winnemucca, Nevada. Two
days later, appellant Roger Libby was arrested for the murders. Libby v. State, 109 Nev. 905, 908-09, 859 P.2d 1050, 1052 (1993) (Libby
I).
Jury selection for Libby's trial began on January 29, 1990. The parties' attorneys questioned each potential juror individually.
Prosecutor Jack Bullock used six of his eight peremptory challenges on women; the remaining two challenges were waived. He also utilized
his one peremptory challenge available for the alternate jurors on a woman. After the state exercised its sixth peremptory challenge, the
defense objected, citing Batson v. Kentucky, 476 U.S. 79 (1986), which holds that the Equal Protection Clause of the United States
Constitution forbids utilizing a peremptory challenge to exclude a juror on the basis of race. Because the United States Supreme Court had
not yet extended Batson to include discrimination based on gender, Bullock refused to provide any reasons for his peremptory challenges.
The district court agreed with Bullock's analysis and erroneously predicted that no case forbidding gender discrimination in jury selection
would be forthcoming. The petit jury consisted of seven men, five women, and two male alternates.
The trial began on April 4, 1990, and the jury returned its verdicts on April 17, 1990, finding Libby guilty of two counts of first degree
murder with the use of a deadly weapon, one count of robbery with the use of a deadly weapon, and five counts of grand larceny. At the
conclusion of the penalty phase, the jury found that two aggravating circumstances for each murder (that the murders occurred during
the commission of a robbery and that the murders involved depravity of mind) outweighed one mitigating
circumstance {Libby's family background).
115 Nev. 45, 49 (1999) Libby v. State
occurred during the commission of a robbery and that the murders involved depravity of
mind) outweighed one mitigating circumstance (Libby's family background). The jury
returned a verdict of death for each count of first degree murder.
On direct appeal, this court affirmed Libby's conviction and death sentences. Libby I, 109
Nev. 905, 859 P.2d 1050. Libby filed a petition for writ of certiorari with the United States
Supreme Court, alleging that this court incorrectly ignored J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994), which prohibits discriminatory use of peremptory challenges during
jury selection based on gender. The Supreme Court granted certiorari, vacated Libby I, and
remanded the case to this court for further consideration in light of J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127 (1994). Libby v. Nevada, 516 U.S. 1037 (1996).
Pursuant to the Supreme Court's order, this court issued an opinion remanding this matter
to the district court for an evidentiary hearing. Libby v. State, 113 Nev. 251, 934 P.2d 220
(1997) (Libby II). Citing J.E.B., this court concluded that Libby had successfully established a
prima facie case of discrimination, the first step in a challenge to the prosecutor's use of
peremptory challenges.
1
However, because Bullock did not offer any reasons for his
peremptory challenges, this court could not review the gender discrimination challenge as
required by J.E.B. Accordingly, this court decided that the proper procedure was to remand
this matter to the district court to conduct an evidentiary hearing, providing the state an
opportunity to present any gender neutral reasons it may have had. Id. at 258, 934 P.2d at 224.
The district court conducted the evidentiary hearing on November 12, 1997, almost eight
years after the January 1990 jury selection for Libby's trial. The state called as a witness the
lead prosecutor Bullock, and Libby called the co-prosecutor Stuart Newman and Libby's trial
counsel, Terrence McCarthy. After the hearing, on December 8, 1997, the district court issued
its findings of fact and conclusions of law, denying a new trial and concluding that the state's
gender neutral reasons were sufficient to rebut Libby's prima facie case. Libby subsequently
filed his timely notice of appeal.
__________

1
Specifically, this court stated, The State's use of seven out of nine peremptories against female jurors not
only established a prima facie case of discrimination, but was a violation of the Equal Protection Clause. Libby
II, 113 Nev. at 255, 934 P.2d at 223. By this language, we recognized that the United States Supreme Court held
that gender discrimination in jury selection is unconstitutional under the Equal Protection Clause. We did not
intend to imply that a prima facie showing of gender discrimination in and of itself establishes a violation of the
Equal Protection Clause. As outlined in Libby II and here, other steps are required before determining whether
purposeful discrimination, violative of equal protection, occurred.
115 Nev. 45, 50 (1999) Libby v. State
DISCUSSION
[Headnote 1]
In J.E.B., the state used nine of ten peremptory challenges to exclude men from the jury in
a paternity trial, resulting in an all-female jury. 511 U.S. at 129. The Supreme Court held,
Intentional discrimination on the basis of gender by state actors violates the Equal Protection
Clause, particularly where, as here, the discrimination serves to ratify and perpetuate
invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.
Id. at 130-31. Three steps are required in a gender discrimination challenge: first, the
defendant must establish a prima facie case of gender discrimination; second, the state must
offer gender neutral reasons for the use of peremptory challenges; and third, the trial court
must evaluate the evidence to determine if the state's reasons sufficiently rebut the prima facie
case or whether the proffered reasons are merely a pretext for purposeful gender
discrimination. Id. at 144-45; see Batson, 476 U.S. at 93-94.
This court has already held that Libby established a prima facie case of gender
discrimination. Libby II, 113 Nev. 251, 934 P.2d 220. The instant appeal concerns the district
court's findings with regard to steps two and three, as well as issues pertaining to the
evidentiary hearing itself.
I. The evidentiary hearing was not meaningless
[Headnote 2]
In Libby II, after remanding for an evidentiary hearing, this court instructed, If the
district court finds that the passage of time has rendered such a hearing meaningless, it shall
vacate defendant's convictions and schedule a new trial.' 113 Nev. at 258, 934 P.2d at 224
(quoting United States v. Thompson, 827 F.2d 1254, 1262 (9th Cir. 1987)). Libby contends
on appeal that the district court erred by failing to find that the hearing was meaningless
which would require a new trial. Specifically, Libby contends that Bullock could not
independently recall what occurred during jury selection, including the demeanor of the
prospective jurors and his reasons for exercising the peremptory challenges. Libby claims that
because almost eight years had passed since the jury selection, Bullock could only speculate
in hindsight when reviewing the voir dire transcripts as to why he excused the women from
the jury. Additionally, neither Newman nor McCarthy could remember much of the selection
process. Accordingly, Libby argues that he was denied a meaningful hearing and the district
court should have ordered a new trial.
115 Nev. 45, 51 (1999) Libby v. State
In Turner v. Marshall, 121 F.3d 1248, 1250 (9th Cir. 1997), cert. denied, 522 U.S. 1153,
118 S. Ct. 1178 (1998), the United States Court of Appeals for the Ninth Circuit had
concluded in a prior proceeding that the defendant established a prima facie case of racial jury
discrimination and remanded for an evidentiary hearing to present and evaluate the state's
race neutral reasons. The hearing was conducted six years after jury selection, and the trial
court determined that no purposeful discrimination occurred. Although the court
acknowledged the prosecutor's diminished memory, on appeal the court concluded that the
transcripts of voir dire and the evidentiary hearing yield a sufficient basis for review of the
lower court's decision. Id. at 1251. The court noted that the prosecutor was able to generally
recall the trial, her review of the transcripts refreshed her recollection, and she was able to
articulate her reasons for exercising the peremptory challenges at issue. Accordingly, the
court concluded that the hearing was adequate because the defense has been afforded ample
opportunity to point out false factual assumptions, or improper motivations in the
prosecution's explanations.' Id. (quoting United States v. Alcantar, 897 F.2d 436, 438 (9th
Cir. 1990)).
In Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992), the petitioner asserted that a Batson
hearing occurring six years after the jury selection process was meaningless. The United
States Court of Appeals for the Second Circuit noted that such a passage of time could impair
the trial court's ability to determine the prosecutor's state of mind when excluding potential
jurors. Id. (citing United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991)). The court
concluded, however, that the trial court will not inevitably be unable to evaluate the
prosecutor's intent in exercising his peremptory challenges, despite the absence of
contemporaneous evidence, and if appropriate findings may conveniently be made, this
should be done.' Id. (quoting Alvarado, 923 F.2d at 256). Because the trial court heard the
prosecutor testify and found that he could remember his reasons for striking the jurors, the
court held that the hearing was not meaningless. Id.
We conclude that Turner and Brown are instructive on this issue. In both of those cases,
the hearing occurred six years after jury selection, almost as long as in the present matter, and
the appellate courts concluded that the hearings were not meaningless. In the current case, the
defense had ample opportunity to cross-examine Bullock in order to challenge both his
credibility as well as his memory. Although Bullock was unable to remember every detail,
such as each potential juror's clothing or exact demeanor, we conclude that the district court
did not abuse its discretion in determining that Bullock was able to sufficiently recall and
articulate his reasons for exercising his peremptory challenges. We acknowledge Libby's
concern over Newman's and McCarthy's diminished memories; however, Bullock alone
made the decision to exercise a peremptory challenge, and he was able to remember his
reasons for doing so.
115 Nev. 45, 52 (1999) Libby v. State
acknowledge Libby's concern over Newman's and McCarthy's diminished memories;
however, Bullock alone made the decision to exercise a peremptory challenge, and he was
able to remember his reasons for doing so. While eight years is a long time, we conclude that
the hearing was not meaningless and the district court could assess Bullock's credibility when
determining whether sufficient gender neutral reasons existed.
II. The district court did not err in its evidentiary rulings at the hearing
[Headnote 3]
A district court's decision to admit or exclude evidence rests within its sound discretion
and will not be disturbed unless it is manifestly wrong. Daly v. State, 99 Nev. 564, 567, 665
P.2d 798, 801 (1983).
[Headnote 4]
At the evidentiary hearing, Libby attempted to question Bullock about male venire persons
who were examined during voir dire but were not ultimately on the jury. After the state
objected, the district court precluded this inquiry. On appeal, Libby argues that the inquiry
would have tested whether Bullock could independently recall the voir dire process in this
case. Libby further argues that the inquiry would have revealed whether Bullock questioned
the men in the same manner as the women who were excused. According to Libby, this
would have shown that Bullock's reasons for excusing women were a mere pretext if the male
venire persons who ultimately were not on the jury had the same characteristics but were not
stricken by the state.
[Headnote 5]
We conclude that the district court did not err by denying Libby's request to question
Bullock about male venire persons. First, Libby sufficiently tested Bullock's memory with
regard to the excused women, as well as all the members of the jury, both men and women.
Second, it is well established that if a stricken juror shares with a seated juror the same
characteristics that the prosecutor offers as a gender neutral reason for exclusion, this is a
factor to determine whether the neutral reasons were a pretext for discrimination. Turner, 121
F.3d at 1251-52. Here, however, Libby attempted to compare the stricken women with men
who were not seated on the jury. Those men were either excused for cause or challenged by
the defense. Therefore, this was not an appropriate comparison. Accordingly, the court's
decision to preclude this inquiry was not manifestly wrong.
115 Nev. 45, 53 (1999) Libby v. State
[Headnote 6]
The district court also precluded Libby from questioning Bullock about his peremptory
challenges of women in a different case, the Ronald Milligan death penalty trial. Libby argues
that he should have been allowed to pursue this line of questioning in order to prove that
Bullock systematically excludes women from juries. We conclude that the district court
correctly determined that this inquiry was irrelevant to the instant matter. The purpose of the
hearing was to determine Bullock's reasons for excluding women from the jury at Libby's
trial, not at Milligan's trial. Bullock may have had a different trial strategy and different
reasons for using his peremptory challenges at each trial. Accordingly, the district court did
not abuse its discretion.
[Headnote 7]
Prior to the evidentiary hearing, Bullock reviewed the voir dire transcripts of the
challenged women and took notes to help jog his memory. At the hearing, Bullock had the
notes with him. On appeal, Libby contends that Bullock did not testify from his memory but
rather from his notes.
NRS 50.125 permits a witness to refresh his memory with a writing. Bullock was properly
permitted to review his notes to refresh his memory after testifying that he did not remember
the answer to specific questions. Libby complains that Bullock in fact did not remember
anything, even after reviewing his notes. Rather, Libby contends that Bullock made up his
reasons for excusing women based on his recent review of the transcripts and notes and not
based on his independent recollection of the jury selection. We disagree.
The record of the hearing demonstrates that Bullock explained when his memory was
refreshed and therefore testified pursuant to his memory. He also explained when he still
could not remember a certain fact even after reviewing his notes. Additionally, the district
court was in the best position to determine Bullock's credibility regarding his memory. The
court obviously believed Bullock when he testified that he remembered his reasons for
exercising the peremptory challenges. Accordingly, no error occurred.
III. The district court's use of the word holistic does not require reversal
[Headnote 8]
Three times in the district court's written findings of fact and conclusions of law, the court
indicated it took a holistic look at the record, a holistic view of the testimony, and a
holistic review" when evaluating the evidence presented at the hearing.
115 Nev. 45, 54 (1999) Libby v. State
review when evaluating the evidence presented at the hearing. (Emphasis added.) Libby
contends that the district court utilized a standard of review that does not exist and, therefore,
this case must be reversed and remanded for a new trial.
In both Hernandez v. New York, 500 U.S. 352, 363 (1991), and Batson, 476 U.S. at 93-94,
the Supreme Court held that the trial court must look at the totality of the relevant facts
when reviewing the evidence presented in a jury discrimination challenge. Although the
district court in this case erroneously used the word holistic instead of the proper phrase
totality of the relevant facts, reversal is not required. The court clearly articulated that it
viewed all the facts and testimony presented in the record and at the hearing. This is exactly
what it was required to do. The word holistic means: relating to or concerned with wholes
or with complete systems rather than with the analysis of, treatment of, or dissection into
parts. Webster's Ninth New Collegiate Dictionary 576 (1991). The court's use of the word
holistic merely referred to the fact that the court reviewed and considered the whole
record, not just selected parts.
[Headnotes 9, 10]
Within this contention in his opening brief, Libby also takes issue with the district court's
failure to use the word pretext in its evaluation of the evidence. This omission does not
require reversal. Even Batson, the case which originally defined the three-step analysis
required in a jury discrimination challenge, did not use the word pretext to articulate the
third step. 476 U.S. at 98 (The trial court then will have the duty to determine if the
defendant has established purposeful discrimination.); see also Hernandez, 500 U.S. at 359
(Finally, the trial court must determine whether the defendant has carried his burden of
proving purposeful discrimination.). While the district court's order here was not very clear
in articulating steps two and three, the court did evaluate the evidence and determine that the
state's gender neutral reasons were sufficient to prove that no purposeful discrimination
existed. Inherent in such an evaluation is a review of whether the state's reasons were a mere
pretext for purposeful discrimination. We take this opportunity to instruct the district courts
of this state to clearly spell out the three-step analysis when deciding a Batson/J.E.B.-type
issue.
IV. The district court did not err in concluding that the state provided sufficient gender
neutral reasons for excluding the challenged women
[Headnote 11]
The Supreme Court in Purkett v. Elem, 514 U.S. 765, 767-68 (1995), held that a neutral
reason need not be persuasive or even plausible.
115 Nev. 45, 55 (1999) Libby v. State
plausible. A legitimate reason for excluding a juror is not a reason that makes sense, but a
reason that does not deny equal protection. Id. at 769. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will be deemed . . . neutral.' Id.
at 768 (quoting Hernandez, 500 U.S. at 360).
[Headnote 12]
In this case, Bullock gave several reasons for challenging each woman, although he
qualified his list by stating that some reasons for each woman were more instrumental in his
decision than other reasons. For example, Bullock explained that each of the excluded women
expressed at least some hesitancy in imposing the death penalty and he did not believe that
further voir dire examination alleviated that hesitancy; this was the most decisive factor for
his use of the peremptory challenges.
Bullock testified that he wanted strong jurors who had no hesitancy about the possibility
of imposing a death sentence, could grasp legal concepts despite the fallacies depicted on
television, and could give their full attention to a lengthy trial. He further testified that he
never purposely excluded women because he knew that women have the same ability to be
good jurors as men and sometimes women are even stronger about imposing a death
sentence. He stated that the five women who remained on the jury were all very strong
people and he was satisfied with the final selection of jurors. Overall, the reasons Bullock
proffered do not inherently contain any discriminatory motive. Accordingly, step two,
providing gender neutral reasons, was satisfied.
[Headnote 13]
With regard to step three, the trial court's evaluation of whether purposeful discrimination
exists, the law is well settled that a reviewing court will give great deference to the trial
court's decision. Hernandez held that deference is the best standard because the trial court's
decision turns largely on the credibility of the prosecutor. 500 U.S. at 365. Accordingly, a
trial court's findings will not be overturned unless they are clearly erroneous. Id. At 369;
see also Turner, 121 F.3d at 1251; Thomas v. State, 114 Nev. 1127, 1137, 967 P.2d 1111,
1118 (1998).
After a review of the record, including the voir dire transcripts, the evidentiary hearing
transcripts, and the district court's findings of fact and conclusions of law, we conclude that
the district court's decision that there was no purposeful discrimination in the state's use of
peremptory challenges was not clearly erroneous. The district court judge had the benefit of
observing firsthand the jury selection process, as well as the evidentiary hearing. He was in
the best position to evaluate Bullock's credibility and the excused jurors' demeanor and
answers.
115 Nev. 45, 56 (1999) Libby v. State
excused jurors' demeanor and answers. Accordingly, the district court's decision was not
clearly erroneous, and reversal is not warranted.
2

CONCLUSION
We conclude that the hearing was not meaningless, the district court did not err in
excluding certain lines of questioning by Libby, and the court's written order was adequate.
We further conclude that the state provided sufficient gender neutral reasons for using
peremptory challenges on the excused women. Accordingly, we affirm the district court's
order denying Libby a new trial.
Leavitt, J., concurring:
I concur with the majority's opinion in this case, but write separately to point out problems
trial judges may have in the future in dealing with Batson challenges. It has always been the
law that [e]ach party is . . . given the right to challenge a certain number of jurors
peremptorily or without assigning any reason. Oliver v. State, 85 Nev. 418, 423, 456 P.2d
431, 434 (1969); see also NRS 175.051. The recent rulings by the United States Supreme
Court have placed limitations on this rule.
The group allegedly discriminated against in this case was women. The challenge was
made even though the jury consisted of five women and the person making the challenge was
a male. Under the new rulings it is not necessary that a person be a member of a group
allegedly being discriminated against. A white person can challenge the action even though
African-Americans are being systematically excluded from the jury by peremptory
challenges. Powers v. Ohio, 499 U.S. 400 (1991); Holland v. Illinois, 493 U.S. 474 (1990);
Peters v. Kiff, 407 U.S. 493 (1972). Furthermore, the rule applies to defendants as well as
prosecutors. Georgia v. McCollum, 505 U.S. 42 (1992).
__________

2
We acknowledge Libby's concern that at the evidentiary hearing, co-prosecutor Stuart Newman stated, I
don't say this in a facetious manner, but I'm not sure as a prosecutor in a case you really want a nice young lady
to sit on a death penalty case. At first blush, this quote appears very damaging to the state; however, this
statement, as used by Libby, is taken out of context.
Newman testified that he recommended to Bullock that a particular venire person, a 20-year-old self-described
daddy's girl who still lived with her parents, be stricken from the jury. Newman reasoned that because this
woman had not had much life experience and because she did not appear to be very strong, Newman did not
want her on the jury. Bullock disagreed with Newman, but the issue became moot when that venire person was
excused for cause by the defense. After a review of Newman's testimony as a whole, it is evident that when he
made the above-quoted statement, he was referring only to that one woman and was not generalizing about all
the female venire persons.
115 Nev. 45, 57 (1999) Libby v. State
At the time of the jury selection, the United States Supreme Court had not named gender
as a basis for a Batson challenge. It later declared that gender was a cognizable group that
may not be discriminated against. The trial judge must now anticipate what group of potential
jurors may some day be included under the Batson ruling. If defendants or prosecutors decide
to pick a jury of people between the ages of 25 and 50, are they discriminating on the basis of
age? Some prosecutors believe persons of a certain ethnic background make better jurors for
the state while other attorneys believe other ethnic groups would favor the defense. Would
peremptory challenges based on ethnic groups be purposeful discrimination and prohibited
under Batson? What members of a cognizable group can the judge prevent from systematic
exclusion? Trial lawyers can no longer exercise a peremptory challenge without assigning
any reason.
Furthermore, the trial judge may be called on to decide the challenge years later (eight
years in this case) and if any hearing is meaningless at that time the court must vacate a
defendant's conviction and schedule a new trial. Libby v. State, 113 Nev. 251, 258, 934 P.2d
220, 224 (1997) (citing United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)).
Therefore, this court should give great deference to the trial court's decision. The judge is
the one who presides over the jury selection process and observes the credibility of the
prosecutor, the defense attorney and the witnesses at any evidentiary hearing. The judge's
findings should not be overturned unless they are clearly erroneous. Hernandez v. New York,
500 U.S. 352, 365 (1991).
I would defer to the trial judge's decision in this case and affirm the order denying a new
trial.
____________
115 Nev. 58, 58 (1999) County of Clark v. Buckwalter
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, on Relation of Las
Vegas Convention and Visitors Authority, Appellant, v. BRIANT BUCKWALTER;
JOHN R. REESE; CALIFORNIA FEDERAL SAVINGS AND LOAN
ASSOCIATION, a California Corporation; TOWER ENTERPRISES, a Partnership;
Profit Sharing Plan of ROY R. VALENTINE, D.D.S., a Professional Corporation;
K.W. HOUNSELL; K.W. HOUNSELL, INC., a Profit Sharing Trust; Profit Sharing
Plan of EDGAR F. MUNCSH, D.D.S., a Professional Corporation; RALPH W.
ENGH and CHRISTINE J. ENGH, Husband and Wife, Respondents.
No. 29477
April 9, 1999 974 P.2d 1162
Appeal from a judgment upon a jury verdict and an order denying a motion for new trial in
a condemnation action. Eighth Judicial District Court, Clark County; Don P. Chairez, Judge.
In a condemnation action, the district court entered judgment on jury's award of
$9,000,000 to landowners. County appealed. The supreme court, Rose, C. J., held that the
trial court's error was not harmless in instructing jury to apply highest price standard rather
than most probable price standard when determining fair market value of condemned
property.
[Rehearing denied October 1, 1999]
Dickerson, Dickerson, Consul & Pocker and Luke Puschnig, Las Vegas; Stewart L. Bell,
District Attorney, and Dale E. Haley, Deputy District Attorney, Clark County, for Appellant.
Law Offices of Kermit L. Waters and Laura Wightman FitzSimmons, Las Vegas, for
Respondents.
1. Eminent Domain.
The most probable price standard, rather than the highest price standard, applies when determining
the fair market value of the condemned property; overruling Wheeler v. State, Dep't Transportation, 105 Nev.
217, 773 P.2d 728 (1989). NRS 37.009.
2. Constitutional Law; Eminent Domain.
Legislature's enactment of most probable price standard for determining fair market value of condemned property, after the
Wheeler court had applied a highest price standard, did not violate the exclusive judicial function of determining just compensation.
U.S. Const. amend. 5; NRS 37.009.
3. Eminent Domain.
Trial court's error was not harmless in instructing jury in condemnation action to apply highest price
standard rather than most probable price standard when determining fair market value of condemned
property, as the jury's award to landowners was likely to have been inflated. There was $5,000,000 disparity
between county's and landowners' valuations under the two standards, jury accepted the landowners'
valuation, and landowners' valuation under highest and best use as a casino involved a use that was not
probable. NRS 37.009.
OPINION
By the Court, Rose, C. J.:
Appellant Clark County (the county), acting on behalf of the Las Vegas Convention
Authority, filed a condemnation action seeking two parcels of property located across from
the Las Vegas Convention Center (the property). The property was owned by Briant
Buckwalter, John R. Reese, and several others (the landowners).
Prior to trial, the landowners filed a motion to define fair market value as the highest
price the property would bring on the open market. The district court granted this motion,
instructing the jury to award the highest price, despite the fact that the legislature in
amending NRS 37.009 had defined fair market value as the most probable price.
After an eight-day trial, a jury found that just compensation for the property was
$9,000,000.00. The county appeals, in part, because it alleges that the district court
committed reversible error by giving the jury the highest price instruction. We agree, and
for the reasons set forth below, we reverse the district court's judgment and order and remand
for a new trial.
FACTS
In the early 1980s, the landowners formed a partnership and purchased the property, which
consisted of two parcels near the Las Vegas Convention Center. Although the property
housed apartment buildings, it was zoned for commercial use, to include retail, food and
beverage, or gaming facilities.
In September 1993, the county adopted a resolution of need and necessity announcing its
intention to condemn the property for expansion of the Las Vegas Convention Center. After a
period of unsuccessful negotiations concerning the fair market value of the property, in April
1994, the county filed a condemnation action against the landowners in Clark County district
court. Approximately one month later, the county gained the right of immediate occupancy
of the property.
immediate occupancy of the property. After rejecting the landowners' offer of judgment of
$4,850,000.00, the parties prepared for trial.
Prior to trial, the district court held several hearings on the parties' motions in limine,
including the landowners' motion to define fair market value. In this motion, the landowners
argued that the fair market value of the property should be defined as the highest price the
property would bring on the open market. The landowners further argued that the legislature's
enactment of NRS 37.009, defining fair market value as the most probable price, was
unconstitutional as a violation of the separation of powers because the legislature had no
authority to deflate just compensation. In contrast, the county argued that fair market value
should be defined as the most probable price the property would bring on an open market
pursuant to NRS 37.009. The district court granted the landowners' motion, adopting the
highest price definition of fair market value.
On April 8, 1996, the matter proceeded to trial. Each party presented experts who testified
on the market value of the property. The landowners' experts testified that the highest price
of the property was between $9,017,000.00 and $9,769,000.00, while the county's expert
testified that the most probable price of the property was $4,560,000.00.
After an eight-day trial, the jury determined by special verdict that the just compensation
for the property was $9,000,000.00 as of April 26, 1994, and $9,769,000.00 as of April 8,
1996. The district court then concluded that April 26, 1994, was the appropriate valuation
date and awarded the landowners $9,000,000.00.
On May 13, 1996, the county filed a motion for a new trial. In a post-trial hearing
following the denial of the county's motion for a new trial, the district court stated that the
highest price definition of fair market value was the one legal issue that we [the county]
really ha[d] in arguing before . . . the Nevada Supreme Court. Thereafter, the county filed
this timely appeal.
DISCUSSION
[Headnote 1]
The county argues that the district court committed reversible error by giving the jury an
erroneous instruction on the definition of fair market value.
1
Specifically, the county
contends that jury instruction no. 12 was erroneous because the "highest price" standard,
which the district court adopted from Wheeler v. State, Departmetn of Transportation,
105 Nev. 217, 773 P.2d 72S {19S9), had been specifically disapproved by the legislature
in 1993 when it amended NRS 37.009.
__________

1
The county further argues that reversal is warranted because the district court erroneously: (1) required
testimony on two different valuation dates; (2) admitted into evidence the landowners' highest and best use of
the property; (3) permitted the landowners to reopen their case-in-chief; (4) excluded evidence regarding the
landowners' opinions of the property's value; (5) excluded evidence regarding the 1984 and 1988 purchase prices
of the property; and (6) refused to allow the county to present rebuttal evidence. Having
instruction no. 12
2
was erroneous because the highest price standard, which the district
court adopted from Wheeler v. State, Department of Transportation, 105 Nev. 217, 773 P.2d
728 (1989), had been specifically disapproved by the legislature in 1993 when it amended
NRS 37.009. We agree. Moreover, to the extent that NRS 37.009(6) contradicts Wheeler, we
explicitly overrule Wheeler on this issue.
In 1993, the legislature amended NRS 37.009
3
mandating that the most probable price
standard
4
be used to define fair market value in condemnation actions. See NRS 37.009(6);
Hearing on A.B. 80 Before the Assembly Comm. on Judiciary, 67th Leg. (Nev., Mar. 29,
1993). This amendment was intended to supersede this court's decision in Wheeler and
prohibit the use of the highest price standard to define fair market value in condemnation
actions. See id.
In the case at bar, the district court blatantly ignored this legislative directive by adopting
the highest price definition in Wheeler because it found that the 1993 amendment to NRS
37.009 was an unconstitutional exercise of the legislature's authority. The district court erred
in making this finding.
NRS 37.009 is constitutional
[Headnote 2]
This court has held that the right to just compensation for private property is a right
guaranteed by the United States and Nevada Constitutions that cannot be impaired by
statute.
__________
reviewed the record and having had the benefit of oral argument of counsel, we conclude that the county's
arguments lack merit because although errors were committed by the district court, these errors were harmless as
they did not affect the substantial rights of the parties. See NRCP 61.

2
The district court gave the following jury instruction defining market value:
The fair market value of property is the highest price on the date of valuation that would be agreed to
by a seller who is willing to sell, but who is under no particular or urgent necessity for so doing, and who
is not obligated to sell, and a buyer who is ready, willing, and able to buy, but who is under no particular
necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for
which the property is reasonably adaptable and available.
(emphasis added).

3
NRS 37.009(6) provides, in relevant part, that:
Value means the most probable price which a property would bring in a competitive and open market
under the conditions of a fair sale, without the price being affected by undue stimulus, whereby the sale is
consummated on a specified date and the title to the property is passed from the seller to the buyer . . . .
(emphasis added).

4
The most probable price standard was adopted from the federal definition of fair market value in
condemnation actions. See 12 C.F.R. 34.42 (1998).
Nevada Constitutions that cannot be impaired by statute. Alper v. Clark County, 93 Nev. 569,
571 P.2d 810 (1977). Moreover, this court has held that the determination of just
compensation is exclusively a judicial function. Clark County v. Alper, 100 Nev. 382, 394,
685 P.2d 943, 951 (1984). These holdings, however, do not support the proposition that the
legislature lacks authority to make laws in the area of eminent domain. Indeed, the legislature,
as the law-making body of the state of Nevada, has such authority provided it acts within
constitutional limits. See Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). We see
nothing unconstitutional in requiring that landowners receive the most probable price as
just compensation for their land. Accordingly, we conclude that NRS 37.009 is a
constitutional exercise of the legislature's authority, and that the district court erred in
concluding otherwise.
The district court's error was not harmless
[Headnote 3]
The landowners argue the district court's erroneous instruction was harmless error because
the highest price as set forth in Wheeler and the most probable price pursuant to NRS
37.009 are synonymous. We disagree. We conclude that these two terms have different
meanings, and that the district court committed reversible error by giving the highest price
instruction because it likely affected the jury's verdict. See Horvath v. Burt, 98 Nev. 186, 643
P.2d 1229 (1982) (reversal is warranted where a different result might have been obtained in
the absence of the erroneous instruction).
First, there is a clear distinction in the plain meaning of the terms most probable and
highest price. Probable price is defined as the price likely to occur or be; that can
reasonably but not certainly be expected. Webster's New World Dictionary 1072 (3d ed.
1988). The highest price is defined as greater in size, amount, degree, power or intensity
etc. than usual. Id. at 636. These definitions are far from synonymous. A hypothetical
exemplifies this difference: one person appraises a piece of land at $1000.00, while five
others value the land at $800.00. Based on these appraisals, the highest price of the land is not
the same as the most probable price because the highest appraisal is $200.00 more than the
most probable or likely appraisal value of $800.00. Thus, the plain meaning of most
probable and highest supports the proposition that these terms are different.
Second, even if this difference were somehow ambiguous, this court has held that it will
presume a substantial change in the law when a statute is amended to change a definition
previously used. See Clark County v. State, Equal Rights Comm'n, 107 Nev. 489, 491, 813
P.2d 1006, 1007 (1991). With regard to NRS 37.009, the legislature amended this statute
to change the definition of fair market value from "highest price" to the "most probable
price."
the legislature amended this statute to change the definition of fair market value from
highest price to the most probable price. Because a statute was amended to change a
definition previously used, this court will presume a substantial change. Accordingly, the
most probable price is a substantial change from the highest price, and thus the terms are
not synonymous.
Third, in the case at bar, there was a manifest practical difference between the most
probable price and highest price because the incorporation of the highest price standard
resulted in a vast $5,000,000.00 disparity in the value of the property. The landowners'
experts testified that the highest price of the land was between $9,017,000.00 and
$9,769,000.00, based in part on their evaluation of the highest and best use of the land as a
hotel casino. In contrast, the county's expert testified that the most probable price of the
land was $4,560,000.00, based in part on his evaluation of the land's most probable use as a
retail/restaurant facility. Moreover, the county's expert testified that it was not probable that a
casino would be built on the land based on the small size of the parcel and an economic
feasibility analysis that suggested the parcel was ill-suited for a casino. Using the highest
price instruction probably cost the taxpayers more than $5,000,000.00 in this case because
the landowners' valuation was based on a casino being built on the property, a scenario that
was not probable. Thus, because of the $5,000,000.00 disparity in valuation of the property
resulting, in part, from the use of the highest price instead of the most probable price
standard, we conclude that the terms are not synonymous.
Fourth, the district court itself noted a manifest practical difference between the highest
price and most probable price when it stated on the record that the highest price jury
instruction affected the jury's verdict. Moreover, the district court noted its own error when it
stated on the record that the county had a valid issue to argue before this court, and if the
district court had this case to try again, it would have allowed the most probable price
instruction in a split verdict format. Thus, even the district court recognized a distinction
between the two instructions and the fact that the terms were not synonymous.
Finally, the legislative history of NRS 37.009 supports our conclusion that the highest
price and the most probable price are not synonymous. The legislature's rationale for
eradicating the use of the highest price standard was to prevent misuse and abuse that
occurred when:
attorneys for condemnees, and their specially selected expert witnesses, . . . used the
phrase highest price' to encourage jurors to speculate in terms of the highest price
conceivable, however improbable. The resultant findings of value [by speculating
juries were] out of touch with the existing market and reality.
ulating juries were] out of touch with the existing market and reality.
Hearing on A.B. 80 Before the Assembly Comm. on Judiciary, 67th Leg. at Ex. E (Nev., Jan.
29, 1993) (emphasis added).
In the case at bar, the landowners misused and abused the highest price instruction in
their closing argument to justify the five million-dollar difference in value when they argued:
Ladies and gentlemen, what I'd like to talk to you about, if I could for a second, is when
you look at Mr. Morse's appraisal [Clark County's expert] you are going to find, among
other things, that he didn't use this highest price definition as the court has told you.
And I told you in the opening statement that it would be the highest price. He used the
most probable price.
Now, ladies and gentlemen, you don't need to be a rocket scientist to know that those
two words have a different meaning, most probable and highest. And he says, Oh,
they're the same thing to me. Do you believe that? I don't believe that.
It's more probable that somebody would have $100 to pay for a piece of property than
it would be for somebody for [sic] have $1,000.00. There would be more people that
could do that. And so that's their way [Appellant Clark County] of coming down to this
$5 million. That's one of their ways of doing it by using the term most probable.
(emphasis added). In other words, the landowners used the distinction in meaning between
the highest price and the most probable price standard to justify the $5,000,000.00
difference in the appraisals of the land and advocate for the higher price.
5
Ironically, the
landowners' closing argument exemplifies the exact type of misuse and abuse of the Wheeler
instruction that the legislature was trying to eradicate by changing the law.
In sum, we conclude that the county was entitled to have the jury properly instructed on
NRS 37.009that the fair market value of the property was the most probable price. See
Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983) (a party is entitled to have the
jury instructed on the law applicable to each claim). Therefore, the district court erred in
giving the highest price instruction to the jury because this instruction was contrary to NRS
37.009.
__________

5
We note that at the district court level the landowners argued that the two standards, highest price and
most probable price, were very different. On appeal, however, the landowners argue that the two standards are
synonymous. This court, however, has often said that a party cannot change positions from that asserted before
the district court. See Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92 (1989); Tupper v. Kroc, 88 Nev.
146, 151, 494 P.2d 1275, 1278 (1972).
trary to NRS 37.009. The district court's error warrants reversal because the erroneous
instruction likely yielded a different, inflated verdict that would likely not have been awarded
had the most probable price instruction been used.
Accordingly, we reverse the district court's judgment and order and remand this case for a
new trial where the most probable price instruction is given, as required by law.
6

Young and Shearing, JJ., concur.
Maupin, J., concurring:
I concur in the majority's result, albeit for alternate reasons.
Respondent's contention that NRS 37.009 is unconstitutional lacks merit. The state
legislature is within its authority to enact legislation and to amend or repeal its statutory law
unless the legislative action is specifically precluded by constitutional limitations. Moreover,
statutes are to be construed in favor of the legislative power. Galloway v. Truesdell, 83
Nev. 13, 20, 422 P.2d 237, 242 (1967) (citing In the Matter of Platz, 60 Nev. 296, 108 P.2d
858 (1940)). As the Nevada Constitution does not preclude this legislation, the presumption
of legislative authority prevails. Here, the legislation simply provides a reasonable definition
of the scope of recovery in condemnation actions. Although it may be argued that the
legislature's statement of public policy on these issues should be revisited, that policy is
rationally based for the purposes of constitutional analysis. Any contention with this
legislative policy should be addressed to the legislature.
Thus, I agree with the majority that the trial court was wrong in its conclusion that NRS
37.009 is unconstitutional. I depart from the majority in its conclusion that NRS 37.009
effects a legislative repealer of Wheeler v. State, Department of Transportation, 105 Nev.
217, 773 P.2d 728 (1989). Although the enactment of NRS 37.009 was intended to do just
that, the language chosen by the legislature does not effect this purpose. The statute mimics
the Wheeler holding, only changing the term highest price to most probable price.
Contrary to the majority, I conclude that the terms are synonymous.
1
Thus, the jury should
have been given two instructions on fair market value, one containing the statutory language,
and a second defining most probable price as the highest price on the date of valuation that
would be agreed to by a willing seller and a motivated buyer under normal market
conditions.
__________

6

1
Appellant's own expert witness/appraiser testified that the value of the property would be the same under
either the most probable price standard or the highest price standard. During trial, the following exchange
occurred between the County's lawyer, Dale Haley (Haley), and the County's appraiser, Tim Morse (Morse):
would be agreed to by a willing seller and a motivated buyer under normal market conditions.
Here, the instruction given by the trial court would have, in my view, been appropriate if
accompanied by the statutory language.
I take this position because the industry, that is persons in the business of appraising real
estate, do not seem to regard the terms highest price and most probable price as
comprising anything other than a distinction without a difference. See note 1. This was
certainly the case with regard to the appraiser's testimony in Wheeler, and with regard to the
county's appraiser below.
The problem at trial was created by the failure to instruct on the statute and, later, the
forensic approach taken during closing argument with regard to the instruction's definition of
fair market value by counsel for the landowners. Counsel did argue that it would not take a
rocket scientist to tell the manifest difference between the terms used in the statute and the
terms used in the instruction. Given the trial court's incomplete definition of fair market
value, counsel's rhetoric comparing that definition with the testimony of the county's expert
was not improper. Had the jury been properly instructed, the argument would have been in
conflict with the legal doctrine presented to the jury.
Here, the landowners successfully fought for an instruction defining fair market value that
did not include the statutory language and then attempted to draw a distinction between
highest price and most probable price. This strategy, which is at odds with the views
stated in this separate opinion, was made more feasible because the county's appraiser
used the statutory language in forming his opinion, although being of the further opinion
that the two terms were synonymous.
__________
Haley: Could you also give your definition of fair market value . . . ?
Morse: Yes. Market value definition. . . . That isit's the most probable price which a property would
bring in an open and competitive market under all conditions to a fair sale without the price being
affected by undue stimulus whereby the sale is consummated on a specific date and the title to the
property is passed from the seller to buyer under the following conditions: That the buyer and seller are
acting prudently and knowledgeably, that the buyer and seller are typically motivated, that the buyer and
seller are well informed.
Also, that there's a reasonable period of time to allow the property for exposure to the open market,
and that payment is made in U.S. Dollars in cash. Or other precisely related terms similar to cash, and
that the sale price represented the normal consideration for the property and there are no special or
creative type financing or other concessions that would be granted in the price.
Haley: Have you ever heard the term highest price used in relation to fair market value definition?
Have you ever heard of that being used?
Morse: Yes.
Haley: Does it make any difference whether you use most probable price or highest price in your
analysis?
Morse: No. It makes no differences in my opinion.
Haley: Does the most probable price result in the highest price?
Morse: Yes, it does.
Haley: That's how the market operates; is that correct?
Morse: Yes, it does.
with the views stated in this separate opinion, was made more feasible because the county's
appraiser used the statutory language in forming his opinion, although being of the further
opinion that the two terms were synonymous.
The trial court's adoption of the landowners' position with regard to fair market value
enabled the landowners to employ the above strategy. However, the rocket scientist
argument improperly expanded upon the highest price instruction that was given. Had the
landowners' closing argument been premised on the assumption that the terms highest and
most probable were synonymous, the failure to instruct on the statute would arguably have
been harmless error. Thus, it was the instruction and the arguments made in connection with
the instruction that form the need for a second trial below.
While counsel's final argument demonstrates an attempt to draw a distinction between the
highest price and most probable price in this context, the appraisal industry does not
draw such a distinction. If juries are instructed as I suggest, and if jury arguments are kept
consistent with the instructions, just compensation to all parties will be realized. For example,
on re-trial, the county will certainly be free to argue that the most probable price for the
subject property based upon its highest and best use should not include speculative casino
development.
2

The trial court's ruling on this issue, which facilitated the tactical approach of counsel
during closing argument, compels reversal. See Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229
(1982) (reversal is warranted where different result might have been obtained in the absence
of the erroneous instruction).
3

__________

2
The majority hypothesizes that, under the instruction given by the trial court, a single appraisal of $1000
would have to be accepted on valuation against five appraisals of $800 based upon the most probable price.
While such is not the inevitable result of the instruction, protection against this interpretation would be in place
if condemnation juries are instructed as I suggest.

3
With regard to the other assignment of errors mentioned in note 1 of the majority opinion, I do have some
individual comments. First, under no circumstances should the jury have been required to find two sets of
damage figures based upon two different valuation dates. This case went to trial within the two-year period
provided under NRS 37.120. While the trial court clearly erred in this regard, this error was harmless. Second,
while exclusion of the evidence of the original purchase price paid by the landowners may have been within the
court's discretion, this was certainly a close call under these circumstances. Its probative value as to a current
valuation would easily have been dealt with on cross-examination of the experts. Third, the exclusion of the
landowners' views on valuation stated in correspondence between counsel was certainly proper because the
letters were part and parcel of settlement negotiations.
___________
115 Nev. 68, 68 (1999) Mason v. Mason
NANCY MASON, Appellant, v. HOWARD MASON, Respondent.
No. 31759
April 20, 1999 975 P.2d 340
Appeal from an order denying appellant's request to relocate outside of Nevada and for an
increase in child support. Eighth Judicial District Court, Clark County; Steven E. Jones,
Judge.
Former wife sought judicial permission to relocate out of state with parties child. The
district court denied request, and former wife appealed. The supreme court held that denial of
former wife's request on grounds that former wife had not made threshold showing of good
faith and that reasonable substitute visitation would not be available to former husband was
supported by evidence.
Affirmed.
Law Offices of Clarence E. Gamble and Donna Williams, Las Vegas, for Appellant.
Dickerson Dickerson Consul & Pocker, Las Vegas, for Respondent.
In determining whether to grant custodial parent's request to relocate out of state with parties' child, the
trial court must consider the Schwartz factors: (1) the extent to which the move is likely to improve the
quality of life for both the children and the custodial parent; (2) whether the custodial parent's motives are
honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent; (3)
whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation
orders issued by the court; (4) whether the non-custodian's motives are honorable in resisting the motion for
permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in
the form of ongoing support obligations or otherwise; and (5) whether, if removal is allowed, there will be a
realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster
and preserve the parental relationship.
In determining whether to permit the custodial parent to relocate out of state with parties' child, the potential frustration of the
non-custodial parent's relationship with child may be part of the calculus of the final Schwartz factor, that being whether, assuming all
of the other factors have been considered, reasonable alternate visitation is available.
The disruption of a non-custodial parent's visitation schedule, by itself, is an insufficient basis for denying a custodial parent's
request for permission to relocate out of state with parties' child.
115 Nev. 68, 69 (1999) Mason v. Mason
4. Divorce.
Denial of former wife's request for permission to relocate out of state with parties' child, on grounds that
former wife had not made threshold showing of good faith and that reasonable substitute visitation would not
be available to former husband, was supported by evidence of former wife's long and documented history of
attempting to thwart former husband's visitation.
OPINION
Per Curiam:
[Headnote 1]
The parties to this appeal were divorced on April 24, 1996. The decree awarded primary
custody of their minor child to appellant, subject to specified rights of respondent to
visitation. The relationship between these parents prior to and subsequent to the divorce can
only be described as contentious. In October of 1997, appellant moved the district court for
leave to relocate the minor child to the state of Florida. The trial court held an extensive
evidentiary hearing and denied the relocation application. The formal ruling made
comprehensive findings of fact and conclusions of law which addressed all of the required
factors set forth in Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991).
1

The trial court found that the threshold Schwartz factor, whether there was a good-faith
basis for the move, had not been shown, in part because of appellant's long and documented
history of actions taken in frustration of respondent's visitation and parental bonding with his
son. The court also, in the alternative, analyzed all five of the Schwartz factors, including
whether a reasonable alternate visitation plan had been presented. The district court
specifically found that appellant's frustration of the parental relationship between respondent
and the child would continue from long distance, thus rendering inadequate any alternate
visitation arrangement established if relocation was granted.
__________

1
(1) the extent to which the move is likely to improve the quality of life for both the children
and the custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to
frustrate or defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to
remove is granted, the custodial parent will comply with any substitute visitation orders issued by the
court; (4) whether the noncustodian's motives are honorable in resisting the motion for permission to
remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the
form of ongoing support obligations or otherwise; (5) whether, if removal is allowed, there will be a
realistic opportunity for the noncustodial parent to maintain a visitation schedule that will adequately
foster and preserve the parental relationship with the noncustodial parent.
115 Nev. 68, 70 (1999) Mason v. Mason
from long distance, thus rendering inadequate any alternate visitation arrangement established
if relocation was granted. From this, the trial court reasoned that the proposed structure for
alternate visitation was inadequate.
[Headnote 2]
We now take the opportunity to further elaborate on our jurisprudence in this area. We
conclude that the frustration of the non-moving parent's parental relationship may be part of
the calculus of the final Schwartz factor, that being whether, assuming all of the other factors
have been considered, reasonable alternate visitation is available.
2

[Headnote 3]
Our previous rulings on these issues clearly establish that disruption of a non-custodial
parent's visitation schedule by itself is an insufficient basis for denying a removal petition.
See Gandee v. Gandee, 111 Nev. 754, 895 P.2d 1285 (1995). Thus, the trial court correctly
concluded that its focus was not whether a modification of the current visitation schedule
would result. Rather, the trial court determined the issue to be whether the alternate or
substitute visitation schedule presented to it would provide sufficient opportunity to maintain,
foster, and preserve the relationship between the child and the non-custodial parent. The trial
court went on to specifically find:
[W]ithout the frequent, substantial contact between the Defendant and his son, their
relationship will be undermined due to the Plaintiff's conduct, demeanor and anger
toward the Defendant. A move would jeopardize the Defendant's relationship with
[Ryan]. Thus, because reasonable, substitute visitation is not available, the . . . request
for relocation must be denied.
[Headnote 4]
We conclude that the trial court's findings, that the threshold showing of good faith had not
been made, and that reasonable substitute visitation was not available, are supported by
substantial evidence.
__________

2
Intent to frustrate the non-relocating parent's relationship has previously been determined to be an issue in
terms of whether the threshold showing of good faith has been shown. See Jones v. Jones, 110 Nev. 1253,
1261, 885 P.2d 563, 569 (1994). In this connection we note that, notwithstanding some degree of intent to
frustrate the non-moving parent's visitation, a court could conceivably find, on balance, a good faith reason for a
proposed move. For example, the petitioning parent may have a concrete job offer in another state. That was not
shown here as noted by the trial court. However, assuming that a trial court in such a case draws such a balance
and finds that the threshold requirement of good faith has been satisfied, the issue of the moving party's
propensity to frustrate visitation would, by our ruling today, be relevant to the fifth Schwartz factor.
115 Nev. 68, 71 (1999) Mason v. Mason
tial evidence. See Blaich v. Blaich, 114 Nev. 1446, 971 P.2d 822 (1998); McGuinness v.
McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998). Thus, the district court properly
followed the analytical construct of Schwartz in resolving the motion to relocate below.
3

We therefore affirm the judgment of the district court.
4

____________
115 Nev. 71, 71 (1999) NAD, Inc. v. Dist. Ct.
NAD, INC., aka NORTH AMERICAN DRAGER, INVIVO RESEARCH, INC., Petitioners,
v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in
and for THE COUNTY OF CLARK, and THE HONORABLE MARK GIBBONS,
District Judge, Respondents, and SOUTHERN NEVADA SURGICAL CENTER, a
Sharon C. Frank Professional Corporation; SOUTHERN NEVADA SURGICAL
CENTER, a Limited Partnership dba SOUTHERN NEVADA SURGICAL CENTER;
SURGEX-SOUTHERN NEVADA, INC., General Partner of SOUTHERN NEVADA
SURGICAL CENTER, a Limited Partnership; and SURGEX, INC., a Foreign
Corporation, Real Parties in Interest.
No. 31476
April 26, 1999 976 P.2d 994
Original petition for writ of mandamus challenging the district court's order denying
petitioner's motion to name Continental Casualty Company a third-party plaintiff.
After insured surgical center settled medical malpractice action, insured brought action for
contribution and indemnity against manufacturers of anesthesia machines and monitors, and
manufacturers sought to depose insurer's attorney regarding the settlement and brought
motion to name insurer as real party in interest.
__________

3
In addition to the findings discussed in this opinion, the trial court found that appellant failed to adequately
demonstrate improvement of her and the child's quality of life; appellant's motives, punishment and frustration of
respondent's visitation rights, were not honorable; and respondent's motives in resisting the move were
honorable. While a parent's desire to frustrate visitation rights enjoyed by the other overlap to several of the
Schwartz factors, the purpose of our decision today is to focus on the fifth Schwartz factor, the availability of
adequate, alternate visitation. See, Trent v. Trent, 111 Nev. 309, 315-16, 890 P.2d 1309, 1313 (1995).

4
Appellant also assigns as error the refusal of the trial court to modify the provisions in the divorce decree
relative to child support. We find no error in this regard.
The district court denied the motion. Manufacturers petitioned for writ of mandamus. The
supreme court held that an insurer is neither a subrogee nor a real party in interest in a third
party contribution instituted by its insured, where the insurer enters into a valid loan receipt
agreement with its insured.
Petition denied.
Edwards, Hale, Sturman & Atkin, Ltd., Las Vegas, for Petitioner NAD, Inc.
Perry and Spann and Monique Laxalt, Las Vegas, for Petitioner Invivo Research.
Vannah Costello Howard Canepa Wiese & Reidy and G. Randall Rostad, Las Vegas, for
Real Party in Interest Surgex.
Harrison, Kemp & Jones and Jerome R. Bowen, Las Vegas; Jones Vargas, Las Vegas, for
Real Parties in Interest Southern Nevada Surgical Center and Surgex.
1. Mandamus.
A writ of mandamus is an extraordinary remedy, and it is within the sole discretion of the supreme court
to determine if a petition for writ of mandamus will be granted.
2. Mandamus.
Mandamus will generally not lie to control discretionary action and will not lie if the petitioner has a plain, speedy, and adequate
remedy at law. NRS 34.170.
3. Parties.
Rule mandating that only a real party in interest may pursue an action enables a defendant to avail himself of discoverable
evidence and relevant defenses, and assures him of finality of judgment. NRCP 17(a).
4. Insurance.
Where a liability insurer has paid an insured's tort liability in full or in part, thereby discharging an obligation owed to that insured,
the liability insurer is a subrogee, and is thus a real party in interest. NRS 17.275.
5. Insurance.
An insurer is neither a subrogee nor a real party in interest in a third party contribution instituted by its insured when the insurer
enters into a valid loan receipt agreement with its insured, which is a written agreement between insurer and insured where insurer
promises to loan the insured a sum of money, which is repayable only if insured recovers a portion of the insurable loss from a third
party.
6. Insurance.
The determination of whether the transfer of money from an insurer to an insured is a loan or a payment is based on the intent of
the parties.
7. Insurance.
A loan receipt agreement is a proper means for an insurer to avoid subrogation, and thereby avoid being named a real party in
interest in a third party contribution action.
8. Contracts.
Parties are free to contract in any lawful matter.
9. Compromise and Settlement.
The prompt settlement of an injured party's claim shall be fostered.
10. Insurance.
Fact that insurer entered into a written contract called a loan receipt agreement with its insureds that stated that insurer was
loaning them $14 million for purposes of settling medical malpractice action was compelling evidence of the parties' intent that the
funds provided to the insured constituted a loan to the extent the insured recovered from a third party, though insurer had warranted to
district court during good faith settlement hearing that insurer was directly making payments to patient's family.
Manufacturers of anesthesia machines failed to establish irreparable harm from insurer's purported ability to use its non-party
status after entering loan receipt agreement to shield itself from discovery in insured surgical center's third party contribution action,
where discovery commissioner recommended precluding deposition of insured's attorney regarding determination of settlement amount
based on lack of relevance rather than insurer's non-party status.
12. Insurance.
An insurer is an agent of its insured for purposes of litigation arising from an insurance policy, and entering into a loan receipt
agreement does not destroy this agency relationship.
Despite the loan receipt agreement, an insurer is an agent of the insured for discovery purposes in third party contribution actions
arising from an insurance policy because the insurer retains control of the litigation, and thus, the third party may seek to discover from
the insurer anything relevant to contribution. NRS 17.225.
OPINION
Per Curiam:
SUMMARY
North American Drager, Inc. (NAD) and Invivo Research (Invivo) filed a motion to
name Continental Casualty Company (CNA) as a third-party plaintiff, alleging that CNA
was the real party in interest because CNA's loan receipt agreement with its insureds was an
ineffective means of preventing subrogation. The district court denied this motion. Thereafter,
NAD and Invivo filed a petition for writ of mandamus, requesting that this court compel the
district court to name CNA as the real party in interest. NAD alleges extraordinary injustice
and irreparable harm as a result of CNA's alleged use of its non-party status as a shield to
prevent NAD from ascertaining discoverable facts. For the reasons set forth below, we
conclude that extraordinary relief is not warranted in this case because the loan receipt
agreement was an effective means of avoiding subrogation, and further, NAD and Invivo
have failed to demonstrate extraordinary injustice and irreparable harm.
warranted in this case because the loan receipt agreement was an effective means of avoiding
subrogation, and further, NAD and Invivo have failed to demonstrate extraordinary injustice
and irreparable harm.
FACTS
Jason Nault sustained severe brain damage during a bilateral laproscopic hernia operation
when an oxygen-supplying endotracheal tube became disconnected. Dr. Sprague, Nault's
anesthesiologist from Clark County Anesthesia Associates, allegedly failed to notice the
disconnected oxygen tube for some period of time despite the fact that he used several vital
sign monitors.
Nault's surgery was performed at Southern Nevada Surgical Center (SNSC), a subsidiary
of Surgex, Inc. (Surgex).
1
SNSC owned the Invivo monitor and the NAD anesthesia
machine used in Nault's surgery. This anesthesia machine, monitor, and other electrical
equipment were inspected quarterly by Life Support Services, Inc. (LSSI).
A negligence action was filed in the name of Jason Nault, now incompetent, and by his
wife, Louise Nault, naming SNSC, Surgex, LSSI, NAD, Clark County Anesthesia Associates,
and others, although NAD was later dismissed by the Naults. Thereafter, Surgex filed a
third-party complaint for contribution and indemnity against NAD and Invivo. NAD, Invivo,
and LSSI responded with a motion to dismiss for failure to state a claim and a motion to
name CNA, Surgex's and SNSC's mutual insurer, as a third-party plaintiff, alleging it was the
real party in interest (hereinafter motion to name CNA as the real party in interest).
Prior to the hearings on these motions, LSSI, SNSC, Surgex, and CNA settled with Jason,
Louise, and their daughter, Renee Rose Nault, for seventeen million dollars ($17,000,000.00).
The settlement agreement signed by the parties required the Naults to:
agree to release all claims against CNA INSURED DEFENDANTS . . . including
potential wrongful death claims. Upon request of the CNA INSURED DEFENDANTS,
Naults agree to release all claims against all or any defendant(s) in the above-entitled
matter, (i.e., North American Drager and Invivo Research, Inc.), or all or any
defendant(s) or third-parties who may be involved in said action.
__________

1
We note that we have simplified the business structure for purposes of this opinion. The true form of the
business structure is as follows: Southern Nevada Surgical Center, a Sharon Frank Corporation, Southern
Nevada Surgical Center, a limited partnership doing business as Southern Nevada Surgical Center
Surgex-Southern Nevada, Inc., a general partner of Southern Nevada Surgical Center, a limited partner, of
Surgex, Inc., a foreign corporation.
The settlement agreement further required SNSC and Surgex to pay the Naults fourteen
million dollars ($14,000,000.00) of the total settlement amount. In connection with this
settlement agreement, SNSC, Surgex, and CNA entered into a Loan Receipt Agreement
that provided as follows:
1. That Lender [CNA] hereby agrees to lend the Borrowers [SNSC and Surgex] the
principal sum of FOURTEEN MILLION DOLLARS ($14,000,000.00) (the Loan).
Lender understands and agrees that the Loan will be used for settlement with the
Plaintiffs [the Naults] in exchange for the release of All Claims re: any and all past,
present and future claims,
. . . .
2. The parties hereto agree that the obligation and liability of the Lender to pay the
Loan . . . is not absolute and undetermined
. . . .
4. Lender understands and agrees that should no recovery be made against any party
alleged to be legally liable for the aforementioned Plaintiffs' claims and injuries
subsequent to litigation, the Borrowers . . . are not liable for repayment of any amount
or part of the FOURTEEN MILLION DOLLARS ($14,000,000.00), . . . .
On April 19, 1996, the district court approved the settlement agreement, finding it was
made in good faith. Thereafter, the district court denied NAD's motion to dismiss, and also
denied NAD's motion to name CNA as the real party in interest. Accordingly, SNSC and
Surgex remained the real parties in interest in the action for contribution and indemnity
against NAD and Invivo.
NAD and Invivo sought to depose Nick Pisani (Pisani), a CNA attorney who
participated in the settlement negotiations with the Naults. CNA alleged that NAD and Invivo
could not depose Pisani because any information he had was either irrelevant or protected by
the attorney-client privilege and public policy. On March 12, 1997, the discovery
commissioner recommended a protective order prohibiting NAD from taking the deposition
because there would be no relevant purpose in the present litigation for taking the deposition
of Nick Pisani, at least as to any possible reasons raised by Drager [NAD] thus far.
Alleging, among other things, that CNA was using its non-party status as a shield to
prevent NAD from ascertaining discoverable facts from Nick Pisani, NAD and Invivo filed a
petition for writ of mandamus, requesting that this court direct the district court to name CNA
as the real party in interest to prevent extraordinary injustice and irreparable harm.
DISCUSSION
[Headnotes 1, 2]
A writ of mandamus is an extraordinary remedy, and it is within the sole discretion of this
court to determine if a petition for writ of mandamus will be granted. Poulos v. District
Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex. rel. Dep't Transp. v.
Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). Mandamus will generally not lie
to control discretionary action and will not lie if the petitioner has a plain, speedy, and
adequate remedy at law. Round Hill General Imp. Dist. v. Newman, 97 Nev. 601, 603-04,
637 P.2d 534, 536 (1981); see also NRS 34.170.
In the matter at bar, NAD and Invivo petition for a writ of mandamus, asking this court to
compel the district court to name CNA as the real party in interest. Based on the reasons set
forth below, we deny this petition because the district court's order denying petitioners'
motion to name CNA as the real party in interest was a proper ruling within the district court's
discretion.
The district court properly found that CNA was not the real party in interest
[Headnote 3]
NRCP 17(a) provides, in relevant part, that [e]very action shall be prosecuted in the name
of the real party in interest. This language mandates that only a real party in interest may
pursue an action in order to enable a defendant to avail himself of discoverable evidence and
relevant defenses and assure him finality of judgment. See Mason-Rust v. Laborer's Int'l
Union Local 42, 435 F.2d 939, 944 (8th Cir. 1970).
[Headnote 4]
NAD and Invivo contend that pursuant to NRS 17.275, CNA is the subrogee of its
insureds, and thus the real party in interest. Indeed, where a liability insurer has paid an
insured's tort liability in full or in part, thereby discharging an obligation owed to that insured,
the liability insurer is a subrogee, and is thus a real party in interest. See NRS 17.275; see also
Valley Power Co. v. Toiyabe Supply Co., 80 Nev. 458, 460, 396 P.2d 137, 138 (1964)
[Headnotes 5, 6]
However, in Nevada, an insurer is neither a subrogee nor a real party in interest in a third
party contribution instituted by its insured when the insurer enters into a valid loan receipt
agreement with its insured. Central Nat. Ins. Co. v. Dixon, 93 Nev. 86, 87, 559 P.2d 1187,
1188 (1977). A loan receipt agreement is a written agreement between an insurer and an
insured where the insurer promises to loan the insured a sum of money, which is repayable
only if the insured recovers a portion of the insurable loss from a third party.
repayable only if the insured recovers a portion of the insurable loss from a third party. Id.
The determination of whether the transfer of money from an insurer to an insured is a loan or
a payment is based on the intent of the parties. V. Woerner, Annotation, Insurance: Validity
and Effect of Loan Receipt Agreement Between Insured and Insurer for a Loan Repayable to
the Extent of Insured's Recovery from Another, 13 A.L.R.3d 42 (1967).
[Headnotes 79]
In upholding loan receipt agreements where the parties so intend, we join the majority of
jurisdictions that recognize that a loan receipt agreement is a proper means for an insurer to
avoid subrogation, and thereby avoid being named a real party in interest in a third party
contribution action.
2
See, e.g., Luckenbach v. McCahan Sugar Refining Co., 248 U.S. 139
(1918); R.J. Enstrom Corp. v. Interceptor Corp., 520 F.2d 1217 (10th Cir. 1975); Celanese
Corp. v. John Clark Indus., 214 F.2d 551 (5th Cir. 1954); Perrera v. Smolowitz, 11 F.R.D.
377 (E.D.N.Y. 1951). We validate these contracts based on the well-established principle that
parties are free to contract in any lawful matter, and that the prompt settlement of an injured
party's claim shall be fostered. See Northern Insurance Co. of New York v. Conn Organ
Corp., 596 P.2d 605 (Or. App. 1979).
[Headnote 10]
In the present matter, the fact that CNA entered into a written contract called a loan receipt
agreement with its insureds that stated that CNA was loaning them fourteen million dollars
for purposes of settling with the Naults is compelling evidence of the parties' intent that the
funds provided to the insured constituted a loan to the extent the insured recovered from a
third party. See Furrer v. Yew Creek Logging Co., 292 P.2d 499, 502 (Or. 1956). Moreover,
although CNA's counsel warranted to the district court during the good faith settlement
hearing that it was directly making payment to the Naults, the existence of collateral evidence
that the transaction was not consistently treated as a loan is not conclusive. See Northern
Insurance Co. of New York v. Conn Organ Corp., 596 P.2d 605, 611 (Or. App. 1979).
Accordingly, we conclude that the loan receipt was valid because CNA, Surgex, and SNSC
intended to enter into such an agreement.
__________

2
We note that a minority of jurisdictions have held that loan receipt agreements are invalid. See, e.g., City
Stores Co. v. Lerner Shops of District of Columbia, Inc., 410 F.2d 1010 (D.C. Cir. 1969); Condor Inv. Co. v.
Pacific Coca-Cola Bottling Co., 211 F. Supp. 671 (D. Or. 1962); Shealy v. Campbell, 485 N.E.2d 701 (Ohio
1985).
NAD and Invivo failed to establish irreparable harm
[Headnote 11]
NAD and Invivo further contend that they were irreparably harmed when CNA was able to
successfully use its non-party status arising out of the loan receipt as a shield to prevent them
from conducting discovery relative to how the overall settlement figure was determined. We
see no evidence in the record to support this contention. Although the discovery
commissioner mentioned the denial of the motion to name CNA as a real party in interest in
his findings on this issue, he precluded discovery on relevance grounds. Because there is no
evidence that the discovery commissioner considered CNA's non-party status in making his
recommendations on discovery to the district court, we conclude that NAD and Invivo have
failed to show irreparable harm or extreme prejudice that would warrant extraordinary relief.
3

Notwithstanding our conclusion that NAD and Invivo have failed to establish that the loan
receipt agreement was void or caused them irreparable harm, we now take this opportunity to
clarify whether an insurer can utilize its non-party status created through a loan receipt
agreement to inhibit discovery.
[Headnotes 12, 13]
An insurer is an agent of its insured for purposes of litigation arising from an insurance
policy, and entering into a loan receipt agreement does not destroy this agency relationship.
See 2A C.J.S. Agency 50 (1972). Additionally, despite the loan receipt agreement, an
insurer is an agent of the insured for discovery purposes in such actions because the insurer
retains control of the litigation. See id. 52. Because of this agency relationship, a third party
may seek to discover from the insurer anything relevant pursuant to NRS 17.225.
Accordingly, we conclude that a district court may not allow an insurer who has entered into
a loan receipt agreement to shield itself from discovery based on its non-party status.
CONCLUSION
We conclude that the district court properly found that CNA was not a real party in interest
because it had entered into a valid loan receipt agreement with its insureds. Moreover, we
conclude that NAD and Invivo have failed to demonstrate that they suffered irreparable
harm or extreme prejudice as a result of the district court's ruling.
__________

3
In the present matter, the discovery commissioner found that evidence concerning the calculation of the
amount of the settlement paid to the Naults was irrelevant. The apparent basis of this finding was that petitioners
failed to oppose the formal approval of the settlement as in good faith. Thus, the discovery commission gave
collateral estoppel effect to the prior good faith determination. Because the issue was not raised in this petition,
the appropriateness of this finding will have to be determined upon direct appeal.
that NAD and Invivo have failed to demonstrate that they suffered irreparable harm or
extreme prejudice as a result of the district court's ruling. We, therefore, deny this petition.
4

____________
115 Nev. 79, 79 (1999) Geary v. State
MELVIN JOSEPH GEARY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33410
April 26, 1999 977 P.2d 344
Appeal pursuant to NRS 177.055 from a sentence of death, pursuant to a jury verdict.
Second Judicial District Court, Washoe County; Margaret M. Springgate, Judge.
The supreme court affirmed conviction for murder, 110 Nev. 261, 871 P.2d 927 (1994),
and vacated death sentence and remanded for new hearing, 112 Nev. 1434, 930 P.2d 719
(1996), and 114 Nev. 100, 952 P.2d 431 (1998). After defendant was sentenced to death by
another jury on remand, defendant informed court that he wished to waive right to appeal
death sentence, and defense counsel sought guidance from the supreme court. After remand
from the supreme court for evidentiary hearing, the district court held that defendant was
competent to waive right to appeal. On automatic appeal, supreme court held that: (1)
evidence supported determination that defendant was competent to waive right to appeal
death sentence, and (2) mandatory review did not reveal that sentence was excessive or
imposed under passion or prejudice.
Affirmed.
[Rehearing denied December 3, 1999]
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Before accepting the defendant's waiver of right to appeal death sentence, district court must conduct a
hearing to determine competence.
2. Criminal Law.
The test for competence to waive right to appeal death sentence is
__________

4
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision of
this appeal.
115 Nev. 79, 80 (1999) Geary v. State
(1) whether the defendant has sufficient present ability to consult with his or her attorney with a reasonable
degree of factual understanding, and (2) whether the defendant has a rational and factual understanding of the
proceedings.
3. Criminal Law.
District court must enter formal, written findings of fact regarding defendant's competence to waive right to appeal death sentence.
4. Criminal Law.
Defendant was competent to waive his right to appeal death sentence where he communicated extensively with defense counsel
about his decision, was found competent by two appointed psychiatrists, and was thoroughly questioned by sentencing court about his
understanding of ramifications of his decision.
5. Criminal Law.
Supreme court was required to conduct mandatory review of death sentence notwithstanding defendant's valid waiver of his right
to appeal death sentence. NRS 177.055(2).
6. Homicide.
Evidence in capital murder sentencing proceeding supported finding of aggravating circumstances that defendant, who was on
parole for another murder at time of slaying, murdered victim while under sentence of imprisonment and had previously been
convicted of another murder.
7. Homicide.
Death sentence was not excessive for knife slaying committed by defendant while drunk, notwithstanding evidence that defendant
had been model prisoner, where defendant had prior murder conviction for homicide committed while intoxicated, and defendant killed
victim who had been trying to help him by giving him place to live.
OPINION
Per Curiam:
In 1993, a jury found appellant Melvin Joseph Geary guilty of first degree murder with the use of a deadly weapon and sentenced him
to death. This court affirmed his conviction, reversed his death sentence, and remanded for a new penalty hearing. In October 1998, another
jury returned a sentence of death, and Geary subsequently informed the district court that he wanted to waive his direct appeal. The district
court concluded that Geary was competent to make such a decision, and this automatic appeal follows.
1

FACTS
In February 1973, Geary murdered Annette Morris by stabbing her while he was under the
influence of alcohol. He was convicted of her murder and sentenced to serve life in prison
without the possibility of parole.
__________

1
Having thoroughly reviewed the record in this matter, we conclude that further briefing and oral argument
are not warranted.
115 Nev. 79, 81 (1999) Geary v. State
of her murder and sentenced to serve life in prison without the possibility of parole. The
Pardons Board eventually commuted his sentence to life in prison with the possibility of
parole. Subsequently, in March 1986, after serving thirteen years, Geary was paroled.
In 1990, Geary resumed drinking alcohol and lost each of his jobs as a chef for various
Sparks casinos. In July 1992, Geary was homeless, jobless, and drinking constantly. He met a
man who referred him to Edward Theodore Colvin. Colvin was a retired recovered alcoholic
who provided help to people who were down on their luck. Colvin gave Geary a place to live
until he got on his feet again. Apparently, Colvin would speak harshly in an effort to motivate
people to take control of their lives.
Geary lived with Colvin for only a few days when, in a drunken rage, he stabbed Colvin
repeatedly after Colvin spoke harshly to him. Colvin died as a result of stab wounds to his
face and neck and from inhalation of blood (Colvin drowned in his own blood). Colvin's
money was missing from his pocket. Geary apparently did not remember committing this
crime due to an alcoholic blackout. A couple of days later, Geary realized what he had done
and called the police.
After a jury trial, Geary was convicted of first degree murder with the use of a deadly
weapon and was sentenced to death. The aggravating circumstances were (1) the murder was
committed while under a sentence of imprisonment (parole for the Morris murder); (2) the
murder was committed by a person previously convicted of another murder; and (3) the
murder was committed at random and without apparent motive. See NRS 200.033(1), (2), (9).
This court initially affirmed Geary's conviction and sentence of death. Geary v. State, 110
Nev. 261, 871 P.2d 927 (1994) (Geary I). Subsequently, this court granted Geary's petition
for rehearing, vacated his death sentence, and remanded for a new penalty hearing. Geary v.
State, 112 Nev. 1434, 930 P.2d 719 (1996) (Geary II). This court held that the random and
without apparent motive aggravating circumstance was inapplicable in this case and that
some of the penalty phase jury instructions were improper. Id. The state filed a petition for
rehearing, and this court granted it in part and denied it in part. Geary v. State, 114 Nev. 100,
952 P.2d 431 (1998) (Geary III).
The second penalty hearing was conducted in October 1998. The jury returned a sentence
of death after determining that the two aggravating circumstancesunder sentence of
imprisonment and previously committed another murderwere not outweighed by any
mitigating circumstances. Geary subsequently informed the district court that he would waive
his right to an appeal from his death sentence.
115 Nev. 79, 82 (1999) Geary v. State
In response to inquiries from Geary's counsel, this court issued an order on February 17,
1999, outlining the proper procedure when a defendant who is sentenced to death wishes to
waive his appellate rights. We remanded this matter for the district court to conduct an
evidentiary hearing to determine whether Geary was competent to waive his direct appeal.
We further directed the district court to determine whether the Washoe County Public
Defender's Office could appropriately continue to represent Geary on appeal or whether
independent counsel should be appointed. This court directed counsel for the parties to file
points and authorities addressing the validity of Geary's waiver of his right to appeal. Both
Geary and the state have complied with that directive and indicate that Geary is indeed
competent to waive his appeal.
The district court conducted the required hearings. Geary and his counsel agreed that the
Public Defender's Office should continue to represent Geary, and the prosecutor did not
object. Accordingly, the district court ordered that the Public Defender's Office represent
Geary through these appellate proceedings. The district court further appointed two
psychiatrists to evaluate Geary's competency. Both doctors reported that Geary was
competent to waive his appellate rights. At the evidentiary hearing, the district court
questioned Geary, ensured that he understood the ramifications of his decision, and concluded
that he was competent to waive his direct appeal. The district court issued written findings of
fact that Geary was competent and validly waived his right to appeal his death sentence. This
automatic appeal follows. As noted, neither Geary nor his defense attorneys dispute the
district court's findings.
DISCUSSION
Geary's competence to waive his right to appeal his death sentence
[Headnotes 13]
NRS 177.055(1) provides, When upon a plea of not guilty a judgment of death is entered,
an appeal is deemed automatically taken by the defendant without any action by him or his
counsel, unless the defendant or his counsel affirmatively waives the appeal within 30 days
after the rendition of the judgment. To waive one's automatic right to an appeal from a death
sentence, the defendant must show that his or her decision was intelligently made and with
full comprehension of its ramifications. Cole v. State, 101 Nev. 585, 588, 707 P.2d 545, 547
(1985); see also Gilmore v. Utah, 429 U.S. 1012, reh'g denied, 429 U.S. 1030 (1976) (waiver
must be made knowingly and intelligently by a defendant competent to make the rational
choice to forgo further, and possibly life-saving, litigation).
115 Nev. 79, 83 (1999) Geary v. State
ther, and possibly life-saving, litigation). Before accepting the defendant's waiver, the district
court must conduct a hearing to determine competence. Kirksey v. State, 107 Nev. 499, 502,
814 P.2d 1008, 1010 (1991). The test for competence is (1) whether the defendant has
sufficient present ability to consult with his or her attorney with a reasonable degree of factual
understanding, and (2) whether the defendant has a rational and factual understanding of the
proceedings. Doggett v. Warden, 93 Nev. 591, 593, 572 P.2d 207, 208 (1977). The district
court is then required to enter formal, written findings of fact regarding the defendant's
competence. Kirksey, 107 Nev. at 502, 814 P.2d at 1010; see also Calambro v. State, 111
Nev. 1015, 1019 n.4, 900 P.2d 340, 343 n.4 (1995) (emphasizing the district court's
mandatory duty to enter written findings regarding competency when a defendant seeks to
waive an appeal from a death sentence). This court has the duty to review those findings, and
the record as a whole, to determine the validity of the death sentence. Kirksey, 107 Nev. at
502, 814 P.2d at 1010.
[Headnote 4]
In the present matter, both Geary and his attorney informed the district court that they have
communicated extensively about Geary's decision to waive his appeal. Both appointed
psychiatrists reported that Geary understood the proceedings. The district court thoroughly
canvassed Geary about his decision, including his understanding of the ramifications, and
Geary remained steadfast in his desire to forgo his appeal. Additionally, in the documents
filed in this court, Geary's attorney informed this court that Geary is indeed competent.
Clearly, Geary's competence is not in dispute. After carefully reviewing the entire record, we
conclude that the district court correctly found that Geary is competent to waive his appeal.
This court's mandatory review pursuant to NRS 177.055(2)
[Headnote 5]
Despite Geary's valid waiver of his appeal, this court must conduct a mandatory review
pursuant to NRS 177.055(2). See Calambro, 111 Nev. at 1020, 900 P.2d at 343; Flanagan v.
State, 105 Nev. 135, 140, 771 P.2d 588, 591 (1989). NRS 177.055(2) requires this court to
review whether the evidence supports the aggravating circumstances, whether the death
sentence was imposed under the influence of passion, prejudice, or any arbitrary factor, and
whether the death sentence is excessive, considering the crime and the defendant.
[Headnote 6]
Here, the evidence overwhelmingly demonstrates the existence of the aggravating
circumstances.
115 Nev. 79, 84 (1999) Geary v. State
of the aggravating circumstances. There is no dispute that Geary murdered Morris in 1973
and that he was on parole at the time of the Colvin murder in 1992. Further, in Geary I, 110
Nev. at 269, 871 P.2d at 932, this court already reviewed the evidence supporting the
aggravating circumstances.
[Headnote 7]
Next, after reviewing the record, we conclude that the death sentence was not imposed
under the influence of passion, prejudice, or any arbitrary factor, nor is the sentence
excessive. The state presented evidence of the brutal nature of the Colvin murder and that
Geary chose to consume alcohol despite knowing that he becomes violent when drunk, as
evidenced by the Morris murder. The state emphasized that Geary killed a man who was
trying to help him by giving him a place to live and that he had killed previously.
The defense presented evidence that Geary was a model prisoner and had no disciplinary
infractions while incarcerated for the Morris murder. Testifying in his defense were, among
others, numerous prison guards, prison wardens, the prison psychologist for whom Geary
worked, and the former dean of the National Judicial College. Despite the quantity and
quality of mitigating evidence, we conclude that the sentence of death is not excessive and
was not imposed under the influence of passion, prejudice, or any arbitrary factor.
Accordingly, we affirm Geary's conviction and sentence of death.
2

____________
115 Nev. 84, 84 (199) Coury v. Robison
RONALD T. COURY, DANIEL HUGHES and SUBURBAN ENTERPRISES, INC., dba
THIRSTBUSTERS, a Nevada Corporation, Appellants/Cross-Respondents, v.
SUSAN ROBISON, in Her Capacity As City Clerk, City of Henderson, Nevada,
ROBERT GROESBECK, DAVID WOOD, AMANDA CYPHERS, ANDY HAFEN
and JACK CLARK, Respondents/Cross-Appellants.
No. 29836
April 26, 1999 976 P.2d 518
Appeal and cross-appeal from a final judgment dismissing appellants' complaint for
declaratory judgment, and dismissing respondents' counterclaims and third-party complaint
with prejudice, and denying respondents' motion for attorney fees. Eighth Judicial District
Court, Clark County; Joseph T. Bonaventure, Judge.
__________

2
The Honorable A. William Maupin, Justice, voluntarily recused himself from the decision of this matter.
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Tavern sought declaratory relief regarding city's denial of application for special use
permit removing 40-gaming-machine limit on limited gaming license issued pursuant to
settlement agreement in prior litigation, and city counterclaimed for unjust enrichment. The
district court granted summary judgment dismissal of the declaratory relief action and the
counterclaim. Cross-appeals were taken. The supreme court held that: (1) city had authority to
restrict tavern's gaming operations to 40 gaming machines; (2) genuine issue of material fact
precluded summary judgment determination of whether changed circumstances justified the
removal of the 40-machine limit; and (3) city was not entitled under unjust enrichment theory
to receive profits generated for tavern by its additional 25 gaming machines under the limited
gaming license.
Affirmed in part, reversed in part and remanded.
[Rehearing dismissed October 20, 1999]
Lionel Sawyer & Collins and Todd Touton and Colin Adkins, Las Vegas, for
Appellants/Cross-Respondents.
Kirshman Harris & Branton and William E. Cooper, Jr., Las Vegas, for
Respondents/Cross-Appellants.
Appellate court reviews orders granting summary judgment de novo.
2. Gaming.
City had authority to restrict tavern's gaming operations to 40 gaming machines under limited gaming license issued pursuant to
settlement agreement in prior litigation, even if city's municipal code entitled a venue licensed for limited gaming to operate between
75 and 199 gaming machines.
3. Gaming.
The acquisition of a gaming license and use permit constitutes a privilege and not a property right.
4. Judgment.
Genuine issue of material fact as to whether gaming conditions in city had changed since city had issued limited gaming license to
tavern precluded summary judgment determination under changed circumstances doctrine of whether it would be inequitable and
oppressive to enforce the 40-gaming-machine limit under the license, which had been issued pursuant to settlement agreement in prior
litigation.
5. Implied and Constructive Contracts.
City was not entitled under unjust enrichment theory to receive profits generated for tavern which operated 25 additional gaming
machines after issuance of limited gaming license pursuant to settlement agreement in prior litigation, as the profits neither belonged to
city nor conferred a loss upon city.
6. Costs.
Attorney fees are not recoverable absent a statute, rule, or contract provision to the contrary.
7. Courts.
The interpretation of a federal counterpart to a Nevada Rule of Civil Procedure is not controlling, but may be persuasive.
OPINION
Per Curiam:
Appellants, Ronald Coury (Coury) and Daniel Hughes (Hughes), through Suburban Enterprises, Inc., operate a tavern known as
Thirstbusters in Henderson, Nevada. In 1989, Thirstbusters was approved for a restricted gaming license to operate fifteen gaming
machines. In 1991, Thirstbusters applied for a limited gaming license and corresponding use permit in order to expand its gaming
operations. In December of 1991, the Henderson city council denied the application, purportedly to limit expansion of gaming in
Thirstbusters' geographic area.
Appellants filed an action in district court to contest this denial. The action was resolved in May of 1992 by agreement providing that
the city council would grant appellants a limited gaming license and use permit restricted to forty gaming machines. Appellants agreed
thereby never to seek a further increase in this number as long as they were the sole shareholders of the corporation.
From June 1992 through December 1995, the city council approved at least eighteen applications for limited, or more extensive,
gaming licenses for competing establishments in the same geographic area as Thirstbusters. Thereafter, appellants requested
reconsideration of the settlement agreement's restrictions so that Thirstbusters could submit a use permit application for additional gaming
machines. The city council refused. Appellants then submitted a formal application for a special use permit requesting removal of the
forty-machine restriction from the settlement agreement. The city clerk refused to file the application or place the matter on the agenda.
In April 1996, appellants filed an action in the district court, seeking (1) writ relief compelling the city clerk to file the application and
place the matter on the agenda, and (2) a judicial declaration that the conditions placed on Thirstbusters' use permit were void as a matter of
law. Respondents filed a counterclaim and third-party complaint, seeking to force appellants to disgorge as unjust enrichment all income
and profits derived from the operation of the twenty-five additional machines awarded in the settlement agreement.
ation of the twenty-five additional machines awarded in the settlement agreement.
On June 14, 1996, the district court issued a writ of mandate directing the city clerk to
accept the application and place the matter on the city council agenda in the ordinary course.
The city clerk complied on June 24, 1996, but the city council again refused to consider the
application. On September 14 and 16, 1996, appellants and respondents filed cross-motions
for summary judgment on the claims for declaratory relief.
Soon thereafter, appellants noticed the depositions of eleven individuals, including the city
council members and City Attorney Shauna Hughes, in an attempt to determine respondents'
motives for filing the counterclaims and third-party complaint, and whether these claims were
properly verified. On September 26, 1996, respondents moved the district court for a
protective order to stop these discovery efforts. On November 7, 1996, appellants filed
separate motions for leave to conduct this discovery and for summary judgment on
respondents' counterclaims and third-party claims.
In the interim, on October 22, 1996, without formal comment, the district court dismissed
the declaratory relief action after ruling on the cross-motions for summary judgment.
Thereafter, also without formal comment, the district court (1) granted appellants'
summary judgment with regard to respondents' counterclaims and third-party complaint, (2)
denied appellants' motion for leave to conduct limited discovery regarding alleged NRCP 11
violations, and (3) denied respondents' motions for a protective order and attorney fees.
Dismissal of appellants' declaratory judgment action
Appellants contend the district court erred in dismissing their declaratory judgment action
for the following reasons: (a) a genuine issue of fact exists as to whether respondents
misrepresented their intentions and, thereby, fraudulently induced appellants to enter into the
settlement agreement; (b) the agreement was void as an ultra vires act of the city council;
and (c) a doctrine of changed conditions rendered invalid the forty-machine restriction in
the agreement.
NRCP 56(c) provides that summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. A genuine issue of material fact is one where the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Posadas v. City
of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441 (1993).
[Headnote 1]
This court reviews orders granting summary judgment de novo. See Bulbman, Inc. v.
Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992). In determining whether any
genuine issues of material fact exist, the pleadings and proof offered below must be construed
in the light most favorable to the non-moving party. Id.
A. The forty-machine restriction as ultra vires
[Headnote 2]
Appellants contend the forty-machine restriction and restriction in the settlement
agreement forever precluding appellants from seeking increases in the number of gaming
machines are ultra vires for the following reasons: (a) Henderson Municipal Code (HMC)
4.32.010 provides that a venue licensed for limited gaming, such as Thirstbusters, is
entitled to operate between 75 and 199 gaming machines, 9 live gaming tables, and a sports
book; (b) the HMC does not authorize the city council to restrict limited gaming to fewer than
seventy-five gaming devices; (c) the city council has no power to limit a conditional use
permit to the present owner of the property so that the use permit does not run with the land;
and (d) conditions that limit the use of land based on the identity of the owner are invalid.
[Headnote 3]
HMC 19.74.014 authorizes the city council to impose conditions and restrictions on use
permits. [A]s a general proposition of law, a municipality may properly enact a zoning
ordinance authorizing it to impose reasonable conditions in granting a special use permit.
Summit School v. Neugent, 82 N.E.2d 463, 466 (N.Y. 1981). Because the acquisition of a
gaming license and use permit constitutes a privilege and not a property right, we conclude
the city council can restrict appellants' gaming operations to forty machines
1
and can
preclude appellants from seeking further increases in this number.
Accordingly, the restrictions in the settlement agreement are not void as a matter of law.
B. Changed circumstances
[Headnote 4]
Notwithstanding the facial validity of the agreement, we conclude the district court erred
in dismissing appellants' declaratory judgment action on summary judgment. We adopt the
doctrine of changed conditions in the present context and conclude that the doctrine
applies to agreements like that at issue in this case.
__________

1
Nevertheless, the doctrine of changed conditions will render the restriction invalid if the purpose of the
restriction cannot be effectuated.
changed conditions in the present context and conclude that the doctrine applies to
agreements like that at issue in this case.
2
In doing so, we conclude that there exists a
genuine issue of material fact as to whether gaming conditions in the Henderson area have
fundamentally changed since the signing of the settlement agreement so that the
forty-machine restriction may constitute an inequitable and oppressive restriction on
appellants' use of their property and confers no benefit upon respondents.
The doctrine of changed conditions operates to prevent the perpetuation of inequitable
and oppressive restrictions on land use and development that would merely harass or
injure one party without benefiting the other. . . . [It] is an equitable doctrine which
stays enforcement of unreasonably burdensome restrictions on land use,
notwithstanding an agreement between the parties specifying the intended duration of
the restrictions.
Cortese v. United States, 782 F.2d 845, 850-51 (9th Cir. 1985) (citations omitted).
We have previously applied the doctrine of changed conditions in the restrictive covenant
context and have concluded that the changed conditions must be so fundamental that they
thwart the original purpose of the restriction. See Gladstone v. Gregory, 95 Nev. 474, 478,
596 P.2d 491, 494 (1979). In Gladstone, this required a showing that the restriction was of no
appreciable value to other property owners and that it would be inequitable or oppressive to
enforce the restriction. Id.
We now adopt the doctrine in the present context and direct the district court to remand
the issue to the city council so that the city council can make findings as to whether changed
conditions, if any, have thwarted the original purpose of the forty-machine restrictionto
limit gaming in the Henderson area. If the geographical limitation on gaming is no longer in
effect, the application for removal of the restriction in the agreement must be granted.
3

Dismissal of respondents' counterclaims with prejudice
[Headnote 5]
Respondents contend the district court erred in dismissing their counterclaims and
third-party complaint with prejudice because, should this court reverse the district court
and either invalidate the forty-machine restriction or remand to the district court the
issue of whether changed conditions render the restriction invalid, the settlement
agreement conferred a benefit upon appellants in the form of profits generated from the
operation of the twenty-five additional machines approved via the original settlement
that enriched appellants unjustly.
__________

2
By our decision today, we do not hold that the doctrine of changed circumstances applies generally to the
issuance of privileged licenses. We merely hold that the doctrine applies to the settlement agreement in the case
at bar and agreements of a similar nature.

3
Appellants did not allege a cause of action for fraud or misrepresentation in their complaint. Consequently,
that issue is not properly before this court.
should this court reverse the district court and either invalidate the forty-machine restriction
or remand to the district court the issue of whether changed conditions render the restriction
invalid, the settlement agreement conferred a benefit upon appellants in the form of profits
generated from the operation of the twenty-five additional machines approved via the original
settlement that enriched appellants unjustly.
We conclude the district court's dismissal of respondents' counterclaims and third-party
complaint with prejudice was warranted because those claims lack merit as a matter of law.
See Home Sav. Ass'n v. Aetna Cas. & Sur. Co., 109 Nev. 558, 563, 854 P.2d 851, 854 (1993).
Appellants were not unjustly enriched as a result of their operation of the twenty-five
additional gaming machines. Any benefit that appellants retained as a result of the settlement
agreement (i.e., profits derived from the operation of the twenty-five additional gaming
machines) neither belonged to respondents nor conferred upon them a loss. [U]njust
enrichment occurs whenever a person has and retains a benefit which in equity and good
conscience belongs to another. Unjust enrichment is the unjust retention of a benefit to the
loss of another . . . . Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 363 n.2, 741 P.2d
802, 804 n.2 (1987) (citations omitted).
Attorney fees
In their motion for attorney fees, respondents argued that (1) appellants abused the
discovery process, see NRCP 26(c) and 37(a)(4), by noticing depositions at a time when
appellants' motions for summary judgment were before the district court; and (2) appellants
utilized unreasonable and vexatious litigation tactics in derogation of NRS 18.010(2)(b) by
asserting that respondents' counterclaims and third-party complaint constituted an abuse of
process. Respondents contend that the district court committed error in denying this motion.
[Headnote 6]
Attorney fees are not recoverable absent a statute, rule, or contract provision to the
contrary. See Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d 1332, 1336 (1983). Here, both
parties were denied relief under these discovery motions. Thus, there was no abuse of
discretion with regard to the claim of attorney fees under NRCP 26(c) and 37(a)(4).
[Headnote 7]
With regard to the claim for statutory fees, NRS 18.010(2)(b) provides in relevant part,
the court may make an allowance of attorney's fees to a prevailing party . . . [when the] . . .
defense of the opposing party was brought without reasonable ground or to harass the
prevailing party."
to harass the prevailing party. (Emphasis added.) Respondents are not entitled to attorney
fees under NRS 18.010 because they were not the prevailing part[ies] with respect to the
counterclaims and third-party claims.
4

Accordingly, we hereby reverse the district court as to the claim for declarative relief and
remand this matter to the district court for further proceedings consistent with this opinion.
On remand, the district court should stay the declaratory judgment action pending
reconsideration by the Henderson City Council as to whether circumstances in Henderson
have changed so as to render the settlement agreement's forty-machine restriction invalid
under the doctrine of changed conditions. In the event that the city's determination is adverse
to appellants, the district court may take whatever appropriate action it deems necessary with
regard to this declaratory relief action, including a trial of the contract issues presented
therein. In all other respects, the decisions below are affirmed.
5

____________
115 Nev. 91, 91 (1999) Parsons v. State
DAVID EARL PARSONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29680
May 18, 1999 978 P.2d 963
Appeal from a judgment of conviction, pursuant to a jury trial, of one count of felony
driving under the influence. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
The supreme court held that: (1) prior misdemeanor DUI conviction could not be used to
enhance DUI to felony, due to ambiguity in record of prior proceeding, and
__________

4
Appellants contend that they should have been allowed limited discovery to support an application for
sanctions under NRCP 11 in connection with respondent's counterclaim for unjust enrichment. Although we
have determined that the counterclaim was invalid as a matter of law, we conclude that Rule 11 is not implicated.
See Zaldivar v. City of Los Angeles, 780 F.2d 823, 830-32 (9th Cir. 1986), abrogated on other grounds by
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); see also Townsend v. Holman Consulting Corp., 929
F.2d 1358, 1365 (9th Cir. 1990); Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir. 1987).
With regard to this issue, we reiterate that the interpretation of a federal counterpart to a Nevada Rule of Civil
Procedure is not controlling, but may be persuasive. Dousan v. Gustavson, 108 Nev. 517, 520-21, 835 P.2d 795,
797 (1992).

5
The Honorable Cliff Young, Justice, and The Honorable Myron E. Leavitt, Justice, voluntarily recused
themselves from participation in the decision of this appeal.
guity in record of prior proceeding, and (2) prosecution was precluded from filing
information by affidavit to clarify prior record.
Reversed.
[Rehearing denied August 20, 1999]
En banc reconsideration granted; petition granted; judgment reversed. 116 Nev.
----
,
10 P.3d 836 (2000).
Harry Gensler, Public Defender, and Harold Kuehn, Deputy Public Defender, Nye
County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District
Attorney, and John J. Friel, Jr., Deputy District Attorney, Nye County, for Respondent.
1. Automobiles.
After driver's felony driving under influence (DUI) charge had been dismissed, based on ambiguity in
record of prior misdemeanor DUI as to whether driver had been represented by counsel, or he had validly
waived right to counsel, prosecution was precluded from filing information by affidavit, which attempted to
clarify record in prior DUI proceeding, since prosecution was impermissibly attempting to satisfy
deficiencies in evidence at preliminary hearing. NRS 173.035(2).
2. Automobiles.
Driver's prior misdemeanor driving under influence (DUI) conviction could not be used to enhance subsequent DUI charge to
felony, since record of prior conviction was ambiguous as to whether driver had been represented by counsel, or he had validly waived
right to counsel.
3. Automobiles.
Prior misdemeanor driving under influence (DUI) conviction may not be used to enhance later DUI to felony, unless records of
prior conviction demonstrate that defendant was either represented by counsel, or formally waived his right to counsel.
OPINION
Per Curiam:
In 1991, appellant David Earl Parsons was charged by a criminal complaint, which cited two prior misdemeanor driving under the
influence (DUI) convictions, with one count of felony driving under the influence. The underlying facts of the case are set forth in
appellant's prior petition. Parsons v. District Court, 110 Nev. 1239, 885 P.2d 1316 (1994) (Parsons I). As noted in Parsons I, the justice
court granted Parsons' motion to strike one of the prior misdemeanors and allowed Parsons to enter a guilty plea to misdemeanor DUI. The
district court granted the State's petition for a writ of certiorari and issued an order nullifying the conviction, and rescheduled the
preliminary hearing in justice court.
and rescheduled the preliminary hearing in justice court. In Parsons I, this court denied
Parsons' petition for a writ of mandamus or prohibition directing the district court to void its
order and vacate the rescheduled hearing.
The rescheduled hearing was held on August 21, 1995, with a different justice of the peace
in accordance with this court's recommendation in Parsons I. At the hearing, Parsons argued
that one of the prior misdemeanor DUI convictions, a guilty plea from Beatty Justice Court,
was insufficient because the complaint did not allege all essential elements, and the
documentation was ambiguous as to whether Parsons had validly waived the assistance of
counsel or whether counsel was actually present. The justice court agreed and dismissed the
felony charge.
The State asked leave of the district court to file an information by affidavit under NRS
173.035(2) to correct what the State referred to as the egregious error committed by the
magistrate below. The information included the affidavits of the prosecutor and of a witness
who clarified that in the proceedings involving the questioned conviction, Parsons had
waived counsel for the arraignment, but had informed the court that he would be represented
by an attorney at further proceedings. The district court found that the error committed by the
magistrate was egregious and that the information by affidavit should be filed.
Thereafter, Parsons was arraigned in district court and entered a plea of not guilty. A
one-day jury trial was conducted, and the jury found Parsons guilty of driving under the
influence with 0.10% or more blood alcohol level. The district court admitted evidence
documenting the earlier DUI convictions. Parsons was sentenced to one year in prison and
was fined $2,000 for felony DUI. Parsons now appeals.
[Headnote 1]
Parsons argues that the district court erred in finding that the magistrate committed
egregious error, and thus, in allowing the State to file an information by affidavit pursuant to
NRS 173.035(2). We agree and, accordingly, reverse Parsons' conviction.
This court has held that NRS 173.035(2) contemplates a safeguard against egregious error
by a magistrate in determining probable cause, [and is] not a device to be used by a
prosecutor to satisfy deficiencies in evidence at a preliminary hearing. Cranford v. Smart, 92
Nev. 89, 91, 545 P.2d 1162, 1163 (1976).
[Headnote 2]
In this case, the justice court, given the information before it, did not commit egregious
error in dismissing Parsons' felony charge.
[Headnote 3]
A court may not use a prior misdemeanor DUI conviction to enhance a DUI to a felony
unless the records of the conviction demonstrate that the defendant was either represented by
counsel or formally waived his right to counsel. Bonds v. State, 105 Nev. 827, 828, 784 P.2d
1, 1-2 (1989). The magistrate had no choice but to dismiss the charge given the ambiguity of
the record regarding the prior Beatty DUI conviction. In filing the information by affidavit,
the State was impermissibly attempting to satisfy deficiencies in evidence at the preliminary
hearing.
____________
115 Nev. 94, 94 (1999) Romo v. Keplinger
RUDY ROMO, Appellant, v. MICHAEL KEPLINGER and SUSAN F. ROMO,
Respondents.
No. 30541
KEVIN MIRCH and STEPHEN J. HEALY, Petitioners, v. THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF
WASHOE, and THE HONORABLE CONNIE J. STEINHEIMER, District Judge,
Respondents, and MICHAEL KEPLINGER, SUSAN F. ROMO, SCOTT
FREEMAN, and MARK WRAY, Real Parties in Interest.
No. 30544
May 19, 1999 978 P.2d 964
Original petition for a writ of mandamus or prohibition by appellant's attorneys
challenging the district court's order sanctioning them for attorney's fees and costs in the
amount of $29,632.65 (Docket No. 30544); appeal from an order of the district court
dismissing appellant's complaint after declaring a mistrial (Docket No. 30541). Second
Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
In civil action for assault, battery, and other claims, the district court granted defendants'
motion for mistrial based on alleged failure of plaintiff's attorneys to advise witnesses of
witness exclusion order, and assessed $29,632.65 in sanctions against plaintiff's attorneys.
Plaintiff appealed and attorneys petitioned for writ of mandamus. The supreme court held that
trial court abused its discretion by declaring a mistrial.
Petition granted; reversed and remanded.
Kevin J. Mirch and Stephen J. Healy, Reno, for Appellant and Petitioners.
Scott N. Freeman, Reno; Mark Wray, Reno, for Respondents and Real Parties in
Interest.
The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned
absent an abuse of discretion.
2. Trial.
Several options are available to the trial judge when a witness violates the rule of witness exclusion: the judge may hold the
witness in contempt, allow cross-examination concerning the violation, prevent the witness from testifying, give a curative jury
instruction, or declare a mistrial. NRS 50.155.
3. Trial.
Trial court abused its discretion by declaring a mistrial as sanction for alleged failure of plaintiff's attorneys to advise witnesses of
witness exclusion order, where trial court did not make a record of the extent of the alleged violation and refused to hold evidentiary
hearing to examine the witnesses under oath. NRS 50.155.
OPINION
Per Curiam:
Appellant Rudy Romo (Rudy) and respondent Michael Keplinger (Michael) engaged in a
fistfight. Rudy required surgery to repair his eye socket, nose and teeth. Michael had a broken
hand and a gash on his forehead. At the time of the altercation, Michael was dating Rudy's
former wife, respondent Susan Romo (Susan). Rudy filed a civil case alleging assault, battery,
abuse of process and other claims. Michael filed a counterclaim for damages and alleged
self-defense. Susan filed an answer.
The matter proceeded to trial. After jury selection, the district court, at the request of the
respondents' attorneys, invoked the exclusion of witnesses rule pursuant to NRS 50.155.
1
The district judge announced from the bench, The rule of exclusion has been invoked.
__________

1
NRS 50.155 reads in part:
1. Except as otherwise provided in subsections 2 and 3, at the request of a party the judge shall order
witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make the order
of his own motion.
2. This section does not authorize the exclusion of:
(a) A party who is a natural person;
(b) An officer or employee of a party which is not a natural person designated as its representative by
its attorney;
(c) A person whose presence is shown by a party to be essential to the presentation of his cause; or
(d) Except as otherwise provided in NRS 171.204, any of the persons listed in subsection 1 of that
section.
invoked. That means anyone who is a potential witness must wait outside and may only
discuss their testimony with the attorneys in this case and with no other parties or witnesses.
During the trial the judge noted, there have been from four to eight people at all times who
have been here in the courtroom and then go out. During the examination of a witness the
court asked if Rudy's attorneys had told him not to talk to anyone about the case, and he
replied in the negative.
The judge cleared the courtroom and stated she had told the attorneys that they must
inform all their witnesses they could not talk to anyone else except the attorneys. Rudy's
attorneys (petitioners) denied that the judge told them it was their duty to tell the witnesses of
the exclusion rule. The record is devoid of any such statement of the court. Later, the judge
commented, I don't know how we are going to ever have a trial if they have been out in the
hallway talking to all the people and all the observers.
The respondents' attorneys moved for a mistrial. The judge granted the motion and
discharged the jury. Rudy moved for an evidentiary hearing to have witnesses testify as to
whether they had talked to one another or to the spectators in the courtroom about the case.
The judge replied, Well, it's five minutes to five. We can't have much of a hearing at this
point. . . . I think this is over. I have granted the mistrial. Court's in recess.
In a later, separate order, the judge awarded the respondents $24,855.00 in attorney fees
and $4,777.65 in costs for a total of $29,632.65. These attorney fees were imposed as
sanctions upon petitioners.
[Headnotes 1, 2]
The decision to grant a mistrial is within the sound discretion of the trial court and will
not be overturned absent an abuse of discretion. Geiger v. State, 112 Nev. 938, 942, 920 P.2d
993, 995 (1996) (citing Owens v. State, 96 Nev. 880, 883, 620 P.2d 1236, 1238 (1980)).
Several options are available to the trial judge when a witness violates the rule of witness
exclusion. The judge may hold the witness in contempt, allow cross-examination concerning
the violation, prevent the witness from testifying, give a curative jury instruction and, finally,
declare a mistrial. The granting of a mistrial is the most severe of all options.
A similar problem faced an Illinois court where the trial judge granted a directed verdict
before the plaintiff finished presenting its case, as a sanction for violation of the exclusion of
witnesses rule. The appellate court stated, Our research . . . has failed to uncover any
reported decision where a trial court has directed a verdict . . . as a sanction for the violation
of an order excluding witnesses. . . . Smith v. City of Chicago, 702 N.E.2d 274, 279-80 (Ill.
App. Ct. 1998).
[Headnote 3]
Here, the trial judge did not make a record as to the extent of the violation of the rule and
refused to hold an evidentiary hearing to examine the witnesses under oath. Thus, it appears
on the record that the trial judge abused her discretion by granting a mistrial, especially since
controversies should, if possible, be determined after a full trial. Rudy is entitled to a new
trial by virtue of NRS 16.150.
2

The trial court, in its order dismissing the action, quoted from Young v. Johnny Ribeiro
Building, 106 Nev. 88, 787 P.2d 777 (1990), by saying that the court has inherent equitable
powers to dismiss actions or enter default judgments for . . . abusive litigation practices.' Id.
at 92, 787 P.2d at 779 (quoting TeleVideo Systems, Inc. v Heidenthal, 826 F.2d 915, 916 (9th
Cir. 1987)) (citations omitted). However, in the same case this court said, [W]hile dismissal
need not be preceded by other less severe sanctions, it should be imposed only after
thoughtful consideration of all the factors involved in a particular case. Id. at 92, 787 P.2d at
780 (citing Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).
In this case, the judge did not hold an evidentiary hearing requested by Rudy to determine
the extent of the violation and who was responsible, instead relying on the court's inherent
power to dismiss the action. It was an abuse of discretion to dismiss the case based on the
record before the court. It follows that the award of sanctions for attorney's fees and costs was
a manifest abuse of discretion warranting extraordinary relief.
Accordingly, we grant the petition in Docket No. 30544. The clerk of this court shall issue
a writ of mandamus compelling the district court to vacate its order sanctioning petitioners. In
Docket No. 30541, we reverse the district court's order dismissing the complaint and remand
this matter to the district court for a new trial pursuant to NRS 16.150.
__________

2
NRS 16.150 reads:
In all cases where a jury are [sic] discharged, or prevented from giving a verdict by reason of accident
or other cause during the progress of the trial, or after the cause is submitted to them, the action may be
again tried, immediately or at a future time, as the court shall direct.
___________
115 Nev. 98, 98 (1999) Clark Co. School Dist. v. Teachers Ass'n
CLARK COUNTY SCHOOL DISTRICT, Appellant, v. CLARK COUNTY CLASSROOM
TEACHERS ASSOCIATION and ARCHIE KLEINGARTNER, Respondents.
No. 30127
May 24, 1999 977 P.2d 1008
Appeal from an order of the district court denying appellant declaratory and injunctive
relief and granting respondents' counter-motion for enforcement of a prehearing subpoena in
a teacher dismissal proceeding. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
School district sought declaratory and injunctive relief prohibiting enforcement of
subpoena duces tecum issued by hearing officer in teacher dismissal proceedings. Teachers'
union counter-moved for enforcement of subpoena. The district court enforced subpoena, and
school district appealed. The supreme court, Agosti, J., held that: (1) hearing officer had
implied authority to issue subpoenas under statute; (2) authority extended to limited use of
subpoenas for pretrial discovery; and (3) hearing officer did not exceed scope of subpoena
power.
Affirmed.
Kamer & Zucker and S. Scott Greenberg; C. W. Hoffman, Jr., General Counsel, and L.
Steven Demaree, Associate General Counsel, Clark County School District, Las Vegas, for
Appellant.
Dyer, Lawrence & Cooney and Leigh C. O'Neill, Carson City; Archie Kleingartner, in
Proper Person, Los Angeles, California, for Respondents.
1. Schools.
Hearing officer in teacher dismissal proceedings has implied authority to issue subpoenas under statute
that does not explicitly grant subpoena power but conveys authority to require witnesses to testify under oath
and to produce evidence relevant to the investigation. NRS 391.3192(2).
2. Administrative Law and Procedure.
Court may not confer upon an administrative agency power in excess of that authorized by the legislature.
3. Schools.
Hearing officer in teacher dismissal proceedings has right to use subpoena for limited prehearing discovery. NRS 391.3192(2).
4. Schools.
Hearing officer's authority to use subpoena power for limited prehearing discovery in teacher dismissal cases includes production
of relevant documents which will be utilized at hearing and disclosure of names and addresses of witnesses to be called for testimony at
hearing. NRS 391.3192(2).
5. Schools.
Hearing officer did not exceed limits on his prehearing subpoena power in teacher dismissal proceedings
in issuing subpoena duces tecum to school district to produce names, addresses and telephone numbers of
students whom district intended to call at hearing, including student who allegedly overheard teacher making
racially denigrating remarks and student whose graduation was allegedly jeopardized by teacher's failure to
perform duties, as well as any written statements obtained from students and documents that district planned
to use at hearing. NRS 391.3192(2).
OPINION
By the Court, Agosti, J.:
Appellant Clark County School District (School District) commenced an action for
declaratory relief seeking a determination that NRS Chapter 391 hearing officers had no
authority to issue prehearing subpoenas. The district court denied the School District's request
for relief. Instead, the district court granted respondent Clark County Classroom Teachers
Association's (CCCTA) countermotion for enforcement of the subpoena. This appeal
followed.
This controversy arose after the School District sent a letter to Joe Cox, a teacher
employed by the School District, notifying Cox that he had been suspended from employment
as a teacher for the School District and that the School District intended to recommend his
dismissal to the Board of Trustees. The School District gave two reasons for its
recommendation. The first concerns Cox's alleged expressions of disrespect and contempt
and racial denigration against his supervising administrator. The letter claims the remarks had
been overheard by students. The second concerns Cox's alleged failure to perform his
professional responsibilities. As an example of his inadequate professional performance, the
School District cited Cox's failure to fill out forms properly on behalf of two senior students
whose graduations were thereby jeopardized.
Cox asked for and received a hearing as authorized by NRS 391.317 and NRS 391.318.
1
Cox is a member of the CCCTA which had entered into a collective bargaining agreement
with the School District pursuant to NRS 391.3116.
__________

1
NRS 391.317 provides:
391.317 Notice of intention to recommend demotion, dismissal or refusal to reemploy; rights of
employee.
1. At least 15 days before recommending to a board that it demote, dismiss or not reemploy a
postprobationary employee, or dismiss or demote a probationary employee, the superintendent shall give
written notice to the employee, by registered or certified mail, of his intention to make the
recommendation.
2. The notice must:
which had entered into a collective bargaining agreement with the School District pursuant to
NRS 391.3116.
2
Pursuant to the terms of that agreement and NRS 391.317, Archie
Kleingartner was selected as the hearing officer to determine whether the School District's
grounds for the recommendation of dismissal were substantiated. Kleingartner's decision
would be binding upon the parties.
Prior to the hearing, at CCCTA's request, Kleingartner issued a subpoena duces tecum to
the School District which ordered the deposition of the superintendent of schools or the
custodian of records for the purpose of obtaining certain information prior to the hearing. The
subpoena duces tecum attempted to obtain:
1. The name, home address and telephone number of the student referred to in the
following excerpt from the notice of intended disciplinary action issued to Joe Cox, Jr.,
on June 7, 1996:
A student related that you yelled loud enough for the whole classroom to hear, That I
don't even want to talk to that nigger, because he thinks people should kiss his ass, but
I'm not and that you curse Mr. Warrick every day.
2. The name, home address and telephone number of each student whom the Clark
County School District {"District") has interviewed and intends to use as a witness
at the hearing of this matter.
__________
(a) Inform the licensed employee of the grounds for the recommendation.
(b) Inform the employee that, if a written request therefor is directed to the superintendent within 10
days after receipt of the notice, the employee is entitled to a hearing before a hearing officer.
(c) Inform the employee that he may request appointment of a hearing officer from a list provided by
the American Arbitration Association and that one will be appointed if the superintendent agrees in
writing.
(d) Refer to chapter 391 of NRS.
391.318 Request for hearing: Action by superintendent.
1. If a request for a hearing is not made within the time allowed, the superintendent shall file his
recommendation with the board. The board may, by resolution, act on the recommendation as it sees fit.
2. If a request for a hearing is made, the superintendent shall not file his recommendation with the
board until a report of the hearing officer is filed with him.

2
391.3116 Contract negotiated by collective bargaining may supersede provisions of NRS 391.311 to
391.3197, inclusive.
The provisions of NRS 391.311 to 391.3197, inclusive, do not apply to a teacher, administrator, or
other licensed employee who has entered into a contract with the board negotiated pursuant to chapter
288 of NRS if the contract contains separate provisions relating to the board's right to dismiss or refuse to
reemploy the employee or demote an administrator.
(District) has interviewed and intends to use as a witness at the hearing of this matter.
3. Complete and unredacted copies of any written statements obtained from students
by the District in connection with this matter.
4. The name, home address and telephone number of each of the two students referred
to in the following excerpt from the notice of intended disciplinary action:
Most recently, the graduations of two senior students from other high schools were
jeopardized by you.
5. The following documents referred to in the letter to Dr. Edward Goldman from
John R. Watkins, dated October 1, 1996, a copy of which is attached hereto:
(a) With respect to the two students referred to in paragraph 4 hereof, the documents
described in paragraphs 1 to 7, inclusive, of Mr. Watkins' letter; and
(b) The documents described in paragraphs 10, 11, and 12 of Mrs. Watkins' letter.
In response to the subpoena, the School District filed an action for declaratory and
injunctive relief in the district court.
The question presented in this appeal is whether the hearing officer is authorized to issue a
subpoena for pre-hearing discovery.
NRS 391.3115 through NRS 391.3197 describe the procedures available to the School
District and the employee when dismissal of the employee is sought. Pursuant to NRS
391.317, Cox was properly informed that the School District intended to seek his dismissal.
Pursuant to NRS 391.318, Cox had a right to a hearing which he did request. It appears Cox,
as a member of the CCCTA, had entered into a collective bargaining agreement with the
School District, pursuant to NRS 391.3116. Both parties agreed to a method for selection of
the hearing officer. It also appears that the parties agreed that the report of the hearing officer
would be binding and final as permitted by NRS 391.3193(2).
NRS 391.3192(2) states the following:
The superintendent of public instruction shall furnish the hearing officer with any
assistance which is reasonably required to conduct the hearing, and the hearing officer
may require witnesses to give testimony under oath and produce evidence relevant to
the investigation.
CCCTA relies upon the above language in support of its claim that the hearing officer is
empowered to issue a subpoena duces tecum.
NRS Chapter 391 makes no relevant reference to a grant of subpoena power to the
hearing officer.
subpoena power to the hearing officer.
3
This chapter describes, inter alia, an administrative
procedure which must be followed in order to contest a school district's recommendation to
terminate an employee. NRS 391.3194(4) anticipates judicial review of a final and binding
determination by a hearing officer and provides that such a review be pursuant to NRS 38.145
or NRS 38.155. NRS Chapter 38 comprises the Uniform Arbitration Act. However, the
legislature did not choose to make all the provisions of the Uniform Arbitration Act
applicable to disciplinary proceedings by a school district against a teacher.
4

In Andrews v. Nevada State Board of Cosmetology, 86 Nev. 207, 467 P.2d 96 (1970), we
held that the powers of an administrative agency are limited to those powers specifically set
forth by statute. In that case, we determined the board did not have the power to issue
subpoenas. We stated: Official powers of an administrative agency cannot be assumed by the
agency, nor can they be created by the courts in the exercise of their judicial function. The
grant of authority to the agency must be clear. Id. At 208, 467 P.2d at 97 (citations omitted).
The language of the statute construed in Andrews provided no device from which we could
clearly infer subpoena power.
[Headnote 1]
We conclude that although the word subpoena is not used in NRS 391.3192(2), the
authority granted to the hearing officer to require witnesses to testify under oath and to
produce evidence relevant to the investigation would be meaningless without the authority
to order testimony under oath and to order the production of evidence. Such an order is
manifested by the issuance of a subpoena.
In Gerlach v. Missouri Com'n on Human Rights, 980 S.W.2d 589 (Mo. Ct. App. 1998), the
Missouri Court of Appeals recognized that while [i]mplication of the subpoena power is
not proper . . . simply because that power would facilitate the accomplishment of an end the
court deems beneficial,' . . . if it necessarily follows from the statute's language, . . . the
subpoena power [may] be implied. Id. at 592 (citing with approval Brooks v. Pool-Leffler,
636 S.W.2d 113 {Mo. Ct. App. 19S2) {superseded by statute)).
__________

3
NRS 391.355(3) expressly grants subpoena power to hearing officers conducting license revocation hearings
under NRS 391.322.

4
The Uniform Arbitration Act does provide for discovery prior to an arbitration hearing. NRS 38.087. In
addition, the arbitrator may issue subpoenas for the attendance of witnesses and for the production of books,
records, documents and other evidence. NRS 38.095(1). However, these statutes are not applicable as the
legislature did not incorporate them into NRS Chapter 391.
v. Pool-Leffler, 636 S.W.2d 113 (Mo. Ct. App. 1982) (superseded by statute)).
5

In Angoff v. M & M Management Corp., 897 S.W.2d 649 (Mo. Ct. App. W.D. 1995), the
court examined the following statutory language to determine whether or not subpoena power
could be implied: [The director of the Department of Insurance] may administer oaths or
affirmations, and shall have power to summon and compel the attendance of witnesses, and to
require and compel the production of records, books, papers, contracts or other documents,
if necessary. Id. at 652. Relying upon that language, the Missouri Department of Insurance
claimed the authority to issue a subpoena duces tecum. The court determined that the
statutory language clearly described the subpoena process in an administrative investigation
despite the fact that the word subpoena was never used. The court stated, To conclude that
the statute does not confer subpoena power would be to draw an artificial distinction where
no difference in fact exists, and such a result would be illogical. The legislature is presumed
to have intended a logical result, rather than an absurd or unreasonable one. Id. at 654
(citation omitted). Such is the case here. We determine that the legislature must have
intended, logically, that the hearing officer have the power to order compliance with the
authority conferred upon him by the statute.
[Headnotes 2, 3]
We are mindful that the court may not confer upon an administrative agency power in
excess of that authorized by the legislature. Andrews, 86 Nev. at 208, 467 P.2d at 96-97.
Despite the determination we make today that NRS 391.3192(2) does permit the hearing
officer to issue subpoenas, we further determine that the subpoena power is not unlimited.
According to the language of NRS 391.3192(2), the hearing officer may subpoena witnesses
to testify at the hearing. The hearing officer also has the authority to issue subpoenas to
produce evidence relevant to the investigation. This implies the right to use the subpoena
authority for limited prehearing discovery.
[Headnote 4]
Limited prehearing discovery, as contemplated by the statute, includes the production of
relevant documents which will be utilized at the hearing and the disclosure of names and
addresses of witnesses to be called for testimony at the hearing.
__________

5
In Brooks, the Missouri Court of Appeals ultimately concluded that there was no implied subpoena power
based on the express wording of a statute as written at the time of the Brooks decision. In Gerlach, the same
court used the Brooks reasoning to reach the opposite conclusion, holding that the subpoena power was implied
under another statute. The Gerlach court also noted that the Missouri Legislature had amended the statute at
issue in Brooks to allow for the issuance of an administrative subpoena, thereby superseding the Brooks
decision.
includes the production of relevant documents which will be utilized at the hearing and the
disclosure of names and addresses of witnesses to be called for testimony at the hearing. This
limited prehearing discovery is necessary to secure the issuance of witness subpoenas and to
determine the nature of documentary evidence upon which the parties will rely at the hearing.
[Headnote 5]
In this case, the hearing officer's subpoena did not exceed the limits which we believe are
implicit in the language of NRS 391.3192(2).
The hearing officer has ordered the name, address and telephone number of a particular
student whom the School District claims overheard Cox make remarks of racial denigration.
The subpoena requires the production of the name, home address and telephone number of
each student the School District interviewed and intends to use as a witness at the hearing, as
well as the name, home address and telephone number of the two students whose graduations
were allegedly jeopardized. The subpoena also orders the production of any written
statements obtained from students in connection with the case. Finally, the subpoena orders
the production of certain documents. Each item ordered to be produced is within the scope of
the language of NRS 391.3192(2).
For these reasons, we affirm the determination of the trial court.
Rose, C. J., Young, Maupin, Shearing, Leavitt and Becker, JJ., concur.
____________
115 Nev. 104, 104 (1999) Barngrover v. Dist. Ct.
LARRY BARNGROVER, DUANE ERICKSON, KENNETH GRAY and WILLIAM
MOLINI, Petitioners, v. THE FOURTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF ELKO, and THE
HONORABLE J. MICHAEL MEMEO, District Judge, Respondents, and THE ELKO
COUNTY GRAND JURY, Real Party in Interest.
No. 32433
June 7, 1999 979 P.2d 216
Original petition for a writ of mandamus. Fourth Judicial District Court, Elko County; J.
Michael Memeo, Judge.
Employees of the Nevada Division of Wildlife (NDOW) filed motion to expunge
purported presentment and grand jury report in which employees were named in connection
with alleged wrongdoing in delaying the issuance of permit to expand gold mining activities
on public lands.
mining activities on public lands. The district court petitioned for writ of mandamus. The
supreme court held that: (1) trial court should have treated documents filed by grand jury as a
report, rather than a presentment; (2) the documents, which contained accusations against
named NDOW employees, did not meet the statutory standards for a grand jury report; and
(3) NDOW employees were entitled to expungement.
Petition granted.
Frankie Sue Del Papa, Attorney General, and Paul G. Taggart, Deputy Attorney General,
Carson City, for Petitioners.
Gary D. Woodbury, District Attorney, Elko County, for Respondents.
1. Officers and Public Employees.
Statute making oppression under the color of office a gross misdemeanor was designed to address civil
rights violations. NRS 197.200(1).
2. Mandamus.
The decision to entertain a petition for a writ of mandamus lies within the discretion of the supreme court.
3. Mandamus.
A writ of mandamus is an extraordinary remedy and may be available to prevent irreparable harm.
4. Mandamus.
Despite an available legal remedy, the supreme court may exercise its discretion to entertain a petition for mandamus relief where
the circumstances reveal urgency and strong necessity.
5. Grand Jury.
Grand juries perform two distinct functions that are not intended to be mixed: (1) reporting on matters involving the operation of
government, and (2) making accusations of possible criminal conduct.
6. Grand Jury.
When singling out an individual through accusations of possible criminal conduct, the grand jury acts as an inquisitor; in its
inquisitorial role, the grand jury must either file a presentment or be silent.
7. Indictment and Information.
When the person accused in the presentment is brought before the court to answer the charges, he or she is entitled to then
challenge the validity of the presentment in the same manner as if an indictment or criminal complaint had been filed.
8. Grand Jury.
When no prosecutorial action will be taken, grand juries are prohibited from including accusations against individuals in their
reports. NRS 172.267, 172.271.
9. Grand Jury.
Where a grand jury's actions violate the statutory standards for a jury report, expungement is the appropriate remedy. NRS
172.267.
10. Grand Jury.
A pre-filing review of a presentment by the district court is not required.
11. Grand Jury.
Statutory standards for a grand jury report do not apply to a report accompanied by a presentment. NRS
172.267.
12. Grand Jury.
Trial court should have treated documents filed by grand jury as a report, rather than a presentment, where grand jury and
prosecutor never intended to proceed with criminal charges because statute of limitations had expired, and thus, the documents were
required to meet statutory standards prohibiting a grand jury report from including accusations against individuals or containing
material the sole effect of which was to ridicule or abuse a person. NRS 172.267(2)(a), (c).
13. Grand Jury.
There is no provision for the government to file a document purporting to be a presentment and then request the court to
determine the matter be closed with no further action. NRS 172.267, 172.285.
14. Grand Jury.
Where the statutory standards for a grand jury report were circumvented by the filing of an invalid presentment, total expungement
of the presentment, the report of the grand jury, and the grand jury transcripts were warranted. NRS 172.267(2)(a), (c).
15. Grand Jury.
Under statute providing that an accused is entitled to transcript of grand jury proceedings if an indictment is found or an
accusation presented, the accused is not limited to receiving a transcript only for the witnesses relied upon by the grand jury. NRS
172.225.
16. Grand Jury.
A presentment is an accusation presented, within meaning of statute giving an accused a right to a transcript of grand jury
proceedings if an indictment has been found or an accusation presented. NRS 172.225.
OPINION
Per Curiam:
FACTS
In 1991, Independence Mining Company (IMC) applied for a permit from the United
States Forest Service (USFS) to expand its gold mining activities on public lands in the
Independence Mountain range. As a part of the permit procedure, the Nevada Division of
Wildlife (NDOW) worked with the Forest Service to determine whether or not the
requested use would negatively impact wildlife in the area. Where a negative impact is
anticipated, the applicant is required to pay the costs of mitigating the damage caused by the
applicant's use of the property. A dispute arose between IMC, NDOW and USFS over the
amount of money IMC would pay in mitigation. The entities also disagreed about the manner
in which NDOW and USFS calculated the damages as well as the impact of the mining
operation on the mule deer habitat which was located in the proposed mining area.
lated the damages as well as the impact of the mining operation on the mule deer habitat
which was located in the proposed mining area.
Petitioners Larry Barngrover (Barngrover), Duane Erickson (Erickson), Kenneth Gray
(Gray), and William Molini (Molini) are the employees of NDOW who were involved in
the determination of damages and/or the negotiations with IMC.
The discussions regarding mitigation damages occurred in 1991 and 1992. IMC had
informed NDOW and USFS that the permit was essential to the continued operation of IMC's
business as IMC was close to exhausting its resources at its existing sites. IMC was
concerned that a substantial loss of revenue might result if it could not resolve the mitigation
issue.
After the protracted negotiations failed to result in an agreement, the parties were
scheduled to proceed with mandatory arbitration. However, rather than arbitrate the issue,
IMC and NDOW decided to agree upon a settlement which required that IMC pay the State of
Nevada $500,000 in mitigation costs. The money would be placed in a fund to be
administered by NDOW, and NDOW would be responsible for the mitigation plan
management. The settlement was approved by the Nevada Legislature, and IMC made the last
payment towards the $500,000 in July of 1994.
On September 18, 1995, a petition was filed with the Fourth Judicial District Court
pursuant to NRS 6.130(1). The petition requested that the court summon a grand jury to
investigate the actions of federal and state officials with regard to the management of public
lands located in Elko County.
1
The IMC transaction was one of the issues which prompted
the petition. IMC, however, had never complained about the transaction. The petition was
granted, and on February 7, 1996, a grand jury was impaneled.
The grand jury met for about one year. With respect to the IMC mitigation settlement, it
heard testimony from numerous witnesses, including petitioners Barngrover, Erickson and
Gray. Deputy Attorney General Wayne Howle, counsel for NDOW, asked District Attorney
Gary Woodbury to indicate whether or not employees of NDOW were targets of a criminal
investigation pursuant to NRS 172.241(2) and Sheriff of Humboldt County v. Marcum, 105
Nev. S24, 7S3 P.2d 13S9 {19S9).
__________

1
The petition is part of a long-running dispute over the management of public lands. Some residents of Elko
County have expressed dissatisfaction with the manner in which public lands are managed because federal and
state regulations affecting these lands can have a significant impact upon Elko County's economy and resources.
The petition alleged there was collusion between employees and officials of the United States Forest Service,
preservation groups, and possibly State officials . . . the effects of which are to severely limit, obstruct, or
terminate all economic and recreational activity on public lands in Elko County.
Marcum, 105 Nev. 824, 783 P.2d 1389 (1989). Woodbury told Howle that the petitioners
were not targets. Therefore, Barngrover, Erickson and Gray testified under the assumption
that the grand jury was not seeking to indict any NDOW employee, but was on a fact finding
mission.
[Headnote 1]
After concluding its hearings on the IMC transaction, the grand jury believed that
petitioners and members of the USFS had somehow conspired to coerce IMC into an unfair
settlement. The grand jury felt the actions of these governmental entities violated NRS
197.200, oppression under the color of office, a gross misdemeanor.
2

On January 9, 1997, the grand jury issued a document called Report of Investigation. No
indictment or presentment accompanied the report. The report was critical of the manner in
which the IMC issue had been resolved. The form of the report suggested it was submitted
under NRS 172.267, but it also contained language arguably in violation of subsections 2(a)
and 2(c) of that act.
Specifically, under the findings portion of the report, the grand jury listed petitioners by
name and indicated what role the grand jury believed a given individual had played in the
IMC transaction. Then, in the section entitled Recommendations, the grand jury concluded
that indictable criminal activity had taken place which, but for the fact that the statute of
limitations had passed on the alleged violations, would have resulted in a recommendation for
prosecution. The report then stated that employees of NDOW deliberately and maliciously
withheld and delayed issuance of permits to which IMC was entitled in order to force IMC to
pay sums of money for habitat development beyond that which IMC was legally or morally
obligated to pay.
The Report of Investigation was sent to the judges of the Fourth Judicial District Court
on January 10, 1997. A cover letter from District Attorney Woodbury was attached. The letter
stated:
__________

2
NRS 197.200(1) states:
An officer, . . . who unlawfully and maliciously, under pretense or color of official authority:
(a) Arrests another or detains him against his will;
(b) Seizes or levies upon another's property;
(c) Dispossesses another of any lands or tenements; or
(d) Does any act whereby another person is injured in his person, property or rights, commits
oppression.
The statute was designed to address civil rights violations, and its application to employees of NDOW on the
basis of the grand jury testimony in this case is doubtful at best.
I want to call your attention to the fact that the report names several individuals, and
indicates that indictable activity was found, and but for the passage of the statute of
limitations, an indictment would issue.
Pursuant to NRS 172.267, there are several subsections which appear to be
safeguards against unfair accusations against named individuals. The Grand Jury is
specifically requesting that you treat the report as a presentment pursuant to NRS
172.267(2)(c).
I am specifically requesting you to find, pursuant to NRS 172.285, that a warrant
cannot issue because of the passage of the statute of limitations.
Upon receipt of the letter and the report, the district court noted that the district attorney
had confused the role of the grand jury in this instance. The report could not be treated as a
presentment as requested in the letter, and the report, standing alone, did not comply with
NRS 172.267. By letter of February 3, 1997, the district court requested that the grand jury
clarify its position. The district court stated:
I would request that the Grand Jury clarify its action by either returning a
presentment(s) in a separate document(s) suitable for filing with the Court that
specifically names the individual to be charged along with the specific criminal statute
that has been violated, or otherwise informing the Court as to its intent.
If the Grand Jury returns presentments . . . the Court will immediately set a hearing for
the return of the presentment(s) in open court . . . .
If the Grand Jury does not accompany the report with a presentment(s), the Court
will afford those individuals named but not formally accused the opportunity for
expungement as required by NRS 172.271 . . . .
This, in effect, advised the grand jury that they could either press charges or amend the report
so that it met the standards of NRS 172.267.
Although the report and the letter of the district attorney both stated that criminal charges
would not be pursued due to the expiration of the statute of limitations, the grand jury still
went forward with a presentment. On the day the presentment was filed, February 13, 1997,
the district attorney asked the district court not to issue a bench warrant and stated the case
could not proceed as any alleged criminal charges were barred by the statute of limitations.
The district attorney said the alleged offense does not constitute an action triable within Elko
County. The district court took the matter under advisement and requested the district
attorney to file points and authorities in support of his position regarding the statute of
limitations issue.
attorney to file points and authorities in support of his position regarding the statute of
limitations issue. After reviewing the brief of the district attorney's office, the district court
issued, on March 10, 1997, an order stating no further action would be taken on the
presentment.
Petitioners were never served with a copy of the presentment or the report. They were
informed of the proceedings by reading accounts of the matter in various newspapers. On
May 15, 1997, after learning of the existence of the presentment, petitioners filed a motion for
an order directing the grand jury court reporter to certify and file a transcript of the grand jury
proceedings as required by NRS 172.225. The district court granted the motion, but limited
the order to all witnesses relied upon by the grand jury in returning the Presentment.
Petitioners requested the district court expand its order to include all of the grand jury
proceedings by a motion filed on August 28, 1997. This motion was opposed by the district
attorney's office and denied by the district court on December 9, 1997.
Petitioners then filed a motion to expunge the presentment and grand jury report, as well
as a motion for reconsideration of the district court's denial of additional transcripts. These
motions were denied on March 3, 1998.
Petitioners filed a direct appeal with this court. Respondents moved to dismiss the appeal
on jurisdictional grounds. While the motion was pending, petitioners filed the instant
extraordinary writ action.
3

DISCUSSION
[Headnotes 24]
The decision to entertain a petition for a writ lies within the discretion of this court. See
Barnes v. District Court, 103 Nev. 679, 682, 748 P.2d 483, 485 (1987). A writ of mandamus
is an extraordinary remedy and may be available to prevent irreparable harm. See Clark
County Liquor v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). The writ is issued to
compel the performance of an act which the law especially enjoins as a duty and where the
petitioner has no plain, speedy and adequate remedy at law . . . . Wardleigh v. District
Court, 111 Nev. 345, 350, S91 P.2d 11S0, 11S3 {1995).
__________

3
This court dismissed the direct appeal on February 1, 1999, concluding that the issues presented would be
most appropriately and expeditiously addressed in the context of the instant writ petition. This court expressed
no opinion as to its jurisdiction to entertain the appeal. See Ashokan v. State, Dep't of Ins., 109 Nev. 662, 856
P.2d 244 (1993) (despite the availability of an adequate legal remedy, this court may exercise its constitutional
prerogative to entertain a writ petition where circumstances reveal urgency and necessity).
891 P.2d 1180, 1183 (1995). As noted, however, despite an available legal remedy, this court
may exercise its discretion to entertain a petition for mandamus relief where the
circumstances reveal urgency and strong necessity. Ashokan, 109 Nev. at 667, 856 P.2d at
247. We have concluded that strong necessity warrants this court's intervention by way of
extraordinary relief in this case.
I. Role of Grand Jury
[Headnote 5]
This court has long recognized the dual roles played by grand juries in our system of
government: (1) reporting on matters involving the operation of government and (2) making
accusations of possible criminal conduct. The two functions are distinct and are not intended
to be mixed. Biglieri v. Washoe Co. Grand Jury, 95 Nev. 696, 601 P.2d 703 (1979). In
Biglieri, the court noted that:
The reportorial function of the grand jury, serving to enlighten the community on
matters of public importance, occupies an important position in our democratic form of
government. We must be on our guard, however, to distinguish between the grand jury's
power to report upon public affairs and its power to accuse of public offenses. In re
Ormsby Grand Jury, 74 Nev. 80, 322 P.2d 1099 (1958). When singling out an
individual through accusations of possible criminal conduct, the grand jury acts as an
inquisitor; in its inquisitorial role, the grand jury must either indict or be silent. Id.;
NRS 172.175(3).
Biglieri, 95 Nev. at 699, 601 P.2d at 705.
[Headnote 6]
Although Biglieri speaks of indictments, the same is true of a presentment. A presentment
is simply a criminal accusation initiated by the grand jury itself, as opposed to an accusation
requested by a prosecutorial agency. Black's Law Dictionary 1184 (6th ed. 1990). NRS
172.005(2) defines a presentment as:
[A]n informal statement in writing, by the grand jury, representing to the court that a
public offense has been committed, which is triable within the district, and that there is
reasonable ground for believing that a particular person, named or described, has
committed it.
[Headnote 7]
A presentment is merely a different method of instigating criminal proceedings. Once
filed, if sufficient upon its face, a warrant is issued. When the person accused in the
presentment is brought before the court to answer the charges, he or she is entitled to then
challenge the validity of the presentment in the same manner as if an indictment or
criminal complaint had been filed.
before the court to answer the charges, he or she is entitled to then challenge the validity of
the presentment in the same manner as if an indictment or criminal complaint had been filed.
If a judge finds there is probable cause to support the charges, then the person is bound over
for trial; otherwise the charges are dismissed. NRS 172.285(3). Under Nevada law a
presentment of public offense contemplates trial and not merely notice to the offender. In re
Ormsby Grand Jury, 74 Nev. 80, 84, 322 P.2d 1099, 1101 (1958).
[Headnotes 8, 9]
In contrast to a presentment or indictment, when a grand jury reports on a public
matter, no trial or criminal proceedings are contemplated. The report is issued for the purpose
of advocating for executive or legislative branch changes. When no prosecutorial action will
be taken, grand juries are prohibited from including accusations against individuals in their
reports. See NRS 172.267 and 172.271.
4
As stated by the court in Ormsby:
The principle is that a man should not be made subject to quasi-official accusation of
misconduct which he cannot answer in an authoritative forum; that in making such
accusation the grand jury is exceeding its reportorial function and is proceeding to
impose the punishment of reprimand based upon secret ex parte proceedings in which
the person punished has not been afforded the opportunity of formal open defense.
Ormsby, 74 Nev. at 83, 322 P.2d at 1100. Where a grand jury's actions violate NRS 172.267,
expungement is the appropriate remedy. In re Report Washoe Co. Grand Jury, 95 Nev. 121,
590 P.2d 622 (1979).
__________

4
NRS 172.267(2) states, in part:
The report must be issued for the sole purpose of reporting on the matter. The report must not:
(a) Contain material the sole effect of which is to ridicule or abuse a person or otherwise subject him
to public disgrace or embarrassment;
. . . .
(c) Accuse a named or unnamed person directly or by innuendo, imputation or otherwise of an act
that, if true, constitutes an indictable offense unless the report is accompanied by a presentment or an
indictment of the person for the offense mentioned in the report.
NRS 172.271 mandates that the court review draft reports of a grand jury and notify persons named in a draft
in violation of NRS 172.267(2)(b) of the inclusion of their name in the draft. It also sets forth the procedure for a
person to ask for their name or identifying information to be expunged from the report before it is made public.
II. Motion to Expunge
[Headnotes 10, 11]
Normally the remedy of expungement is not available in a presentment context. As noted
by the district court in its order denying the motion to expunge, NRS 172.255(3) provides that
once a grand jury decides it will issue a presentment, then it must be returned in open court. A
challenge to the sufficiency of the presentment is made under NRS 172.285(3) through a
preliminary hearing or motion to dismiss. The statutes do not contemplate, and the law does
not require, a pre-filing review of a presentment by the district court. Moreover, since NRS
172.267 does not apply to a report accompanied by a presentment, a motion to expunge or
preliminary review of a report by a judge under NRS 172.271 is not applicable.
[Headnotes 12, 13]
However, in the instant case, the grand jury and the prosecutor never intended to proceed
forward with criminal charges. Thus, the presentment improperly circumvented the
provisions of NRS 172.267. Once it was clear to the district court that the prosecution was
not going to pursue criminal charges, the court erred in treating the documents filed as a
presentment and instead should have treated the pleadings as a report under NRS 172.267.
NRS 172.285 states that the court shall issue a warrant of arrest if the presentment contains
facts which show that a public offense has been committed. There is no provision for the
government to file a document called a presentment and then request the court to determine
the matter be closed with no further action. NRS 172.267 is designed to prevent such an
eventuality from occurring.
5

The presentment and report filed below violated NRS 172.267(2)(a) and (c). The district
court recognized the problems with the report in its letter of February 3, 1997. Thus, the
petitioners should have been afforded an opportunity to file a motion to have certain portions
of the report stricken before the report was finalized and made public.
[Headnotes 1416]
This court has generally held that only those portions of the report which violate the
provisions of NRS 172.267 are subject to expungement.
__________

5
If the district attorney believed a triable offense had been committed, he should have requested a warrant.
Petitioners would then have been able to raise the statute of limitations issue by a motion to dismiss. They would
also have been able to challenge the questionable application of NRS 197.200 to the facts in this case.
expungement. However, in this case, where the statute was circumvented by the filing of an
invalid presentment, total expungement of the presentment, the report of the grand jury and
the grand jury transcripts is warranted.
6

CONCLUSION
The district court correctly ruled that the report of investigation did not comply with NRS
172.267. It exceeded its statutory authority, however, in allowing the filing of a document
entitled presentment in the face of the district attorney's statement that no triable offense
had been committed. We conclude that the district court's action warrants this court's
intervention by extraordinary writ. Accordingly, we grant this petition. The clerk of this court
shall issue a writ of mandamus compelling the district court to enter an order expunging the
presentment and report, as well as the grand jury transcripts involving the petitioners.
____________
115 Nev. 114, 114 (1999) Manley v. State
CHARLES MANLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31418
June 7, 1999 979 P.2d 703
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first
degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and
possession of a firearm by an ex-felon, and from a sentence of death. Eighth Judicial District
Court, Clark County; Sally L. Loehrer, Judge.
Defendant appealed. The supreme court held that: (1) trial court erred in ruling that
defendant waived the attorney-client privilege, and (2) violation of privilege also violated
defendant's Sixth Amendment right to counsel; and
__________

6
The district court denied petitioners' request for additional transcripts because no criminal proceedings were
pending against them. Since this court has determined that the presentment was invalid, petitioners are not
entitled to any additional transcripts. However, NRS 172.225 provides that if an indictment has been found or
accusation presented then the accused is entitled to a transcript of the grand jury proceedings. The district court
erred when it limited the transcript to all witnesses relied upon by the grand jury.
The State has argued that NRS 172.225 does not apply to presentments. Since a presentment is an informal
written statement alleging a particular person has committed a public offense, it falls within the meaning of
accusation presented. Id.
Sixth Amendment right to counsel; and (3) the error, while susceptible to a harmless error
analysis, was not harmless.
Reversed.
Leavitt, J., dissented.
David M. Schieck, Las Vegas, for Appellant.
and Christopher Laurent, Chief Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Defendant's testimony on direct examination, that his attorney had told him not to say anything, that the
attorney was upset when defendant telephoned him after jumping bail, and that defendant did not disclose a
significant part of defendant's communications with the attorney, as required to waive the attorney-client
privilege.
2. Witnesses.
Where a client voluntarily reveals portions of the communications with the attorney, those revelations amount to a waiver of the
attorney-client privilege as to the remainder of the conversations or communication about the same subject matter.
3. Witnesses.
For witness to waive attorney-client privilege upon questioning, witness's answers must be wide enough in scope and deep enough
in substance to consitute a significant part of the communication. Merely acknowledging the fact that the witness discussed a subject
with his attorney does not waive the privilege.
4. Witnesses.
While attorney may claim attorney-client privilege on the client's behalf, only the client has the ability to waive it. NRS 49.095.
5. Criminal Law.
Violation of the attorney-client privilege violated capital murder defendant's right to counsel under the Sixth Amendment.
Prosecutor's cross-examination, inquiring into defendant's confidential relationship with his attorneys, damaged defendant's credibility
by implying that defendant had not been entirely truthful even with his own attorneys, and had either omitted information detrimental
to him or simply lied to them regarding what happened the night of the shooting, and the jury's assessment of defendant's credibility
was crucial. U.S. Const. amend. 6.
6. Criminal Law.
Government interference with the attorney-client relationship violates the Sixth Amendment only when it substantially prejudices
the defendant. U.S. Const. amend. 6.
7. Criminal Law.
Violation of capital murder defendant's right to counsel under the Sixth Amendment via prosecutor's improper intrusion into the
attorney-client privilege on cross-examination of defendant was a trial error, not a structural error, and thus, would be reviewed
under the harmless error standard. Error was simply an error in the trial process itself that occurred during the presentation
of the case to the jury, and it did not affect the framework within which the trial proceeded.
that occurred during the presentation of the case to the jury, and it did not affect the framework within which
the trial proceeded. U.S. Const. amend. 6.
8. Criminal Law.
Structural error, which affects the entire conduct of the trial, defies analysis by harmless-error standards.
9. Criminal Law.
Trial error, which is subject to harmless error analysis, is any constitutional error which occurred during the presentation of the
case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable doubt.
10. Criminal Law.
Violation of capital murder defendant's right to counsel under the Sixth Amendment via prosecutor's improper intrusion into the
attorney-client privilege on cross-examination of defendant was not harmless. Defendant was substantially prejudiced by the
prosecutor's inquiry into whether he told his attorneys certain facts about victim's death. U.S. Const. amend. 6.
11. Criminal Law.
Prosecutor's question during cross-examination of defendant, essentially asking jurors to speculate that defendant engaged in anal
sex while he was in prison did not warrant reversal where defense objected immediately and trial court sustained the objection and
struck the question.
12. Criminal Law.
Prosecutor's inappropriate comment, telling defense counsel, Certainly we could do that one exhibit at a time for the mentally
challenged, when defense counsel asked that the prosecutor go more slowly in admitting an exhibit, was not patently prejudicial.
13. Criminal Law.
Denial of mistrial when prosecutor questioned witness about her conversation with defense attorney regarding defendant's alibi,
which allegedly forced defendant to testify to explain that he was not involved in filing the notice of alibi, was not an abuse of
discretion. Defense counsel timely filed the notice of alibi only 14 days before trial and never formally withdrew that notice.
14. Criminal Law.
Denial of motion to sever the ex-felon in possession of a firearm charge from charges of first degree murder with the use of a
deadly weapon and robbery with the use of a deadly weapon was not an abuse of discretion, but on retrial, it would be proper to sever
that charge.
15. Criminal Law.
Defendant failed to object to robbery instruction on ground that it was legally impossible to rob a dead person, or to propose a
different instruction, and no patently prejudicial error occurred to warrant supreme court's consideration of the issue.
16. Criminal Law.
Limiting defense counsel's closing argument to two hours at the conclusion of the evidentiary phase of trial and not permitting
defense counsel an additional ten minutes to argue was not an abuse of discretion. Prosecutor only argued for seven minutes more than
defense counsel, and the jury had already retired to begin deliberations when defendant requested more time.
17. Criminal Law.
Though defendant invoked his right to trial within 60 days after arraignment, he waived that time limit by
instructing his attorney to file a pre-trial petition for a writ of habeas corpus. NRS 34.700, 178.556(1).
18. Criminal Law.
Defendant's federal constitutional right to a speedy trial was not violated, even though he had to wait approximately two years and
three months after arraignment before going to trial. Defendant was responsible for the part of the delay caused by filing a habeas
petition, adding counsel, and moving to continue the trial date, the other reasons for the delay were legitimate conflicts with the State's
and the court's schedules, and defendant failed to show particularized prejudice arising from the delay. U.S. Const. amend. 6.
19. Homicide.
State may not seek both receiving money and robbery aggravating circumstances when they are based on the same facts.
OPINION
Per Curiam:
In March 1995, appellant Charles Manley shot Roxanne Logan in the back of the head, killing her. Appellant claimed the shooting was
an accident. The jury convicted appellant of one count each of first degree murder with the use of a deadly weapon, robbery with the use of
a deadly weapon, and possession of a firearm by an ex-felon. At the subsequent penalty hearing, the jury found that five aggravating
circumstances outweighed four mitigating circumstances and returned a verdict of death. On appeal, appellant contends, among other
things, that the district court erred in ruling that he waived the attorney-client privilege. We agree with appellant that the district court erred,
conclude that this error was not harmless, and reverse appellant's conviction.
FACTS
On February 9, 1996, appellant filed a motion to assert the attorney-client privilege between him and two of his attorneys: Mark Wolf,
who was appellant's lead trial counsel, and Roland Robinson, with whom appellant initially consulted in California. The state opposed the
motion on the ground that it only wished to question Wolf and Robinson as to the chain of custody of appellant's truck and clothing. Wolf
and Robinson knew about the chain of custody because they had accompanied appellant back to Las Vegas from California, where he had
driven after the shooting. Wolf and Robinson also told the Las Vegas police where appellant's truck was parked, and gave the
police clothing appellant had given them.
appellant's truck was parked, and gave the police clothing appellant had given them.
At a February 15, 1996 hearing, the court ruled that the attorney-client privilege was not
violated if the state only wanted to ask whether Wolf and Robinson brought appellant's truck
and clothing to the police. When the issue was raised again at an August 15, 1996 hearing, the
court reiterated that communications were not allowed as a subject of inquiry but acts were.
In its case-in-chief, the state presented incriminating testimony of three prisoners with
whom appellant was incarcerated. In an attempt to rebut this evidence and show that
appellant did not discuss his case with anyone he was imprisoned with, Wolf asked appellant
the following questions on direct examination:
DEFENSE COUNSEL WOLF: Over the course of traveling to Las Vegas from San
Diego, just asking yes or no, did we talk about anything?
APPELLANT: Yes.
. . . .
DEFENSE COUNSEL WOLF: . . . Did you have in your mind any plan as to whether
or not you would say anything about your case when you went to custody?
APPELLANT: No. You told me not to say anything about anything.
Later on direct examination, Wolf asked appellant the following questions as part of a series
of questions explaining why appellant jumped bail and where he went when he did so:
DEFENSE COUNSEL WOLF: At some point did you end up calling me in San
Diego?
APPELLANT: Yes, I did.
DEFENSE COUNSEL WOLF: And would you describe for the jury my state of mind
as it appeared to you on the telephone?
APPELLANT: You were pissed. Everybody was pissed.
DEFENSE COUNSEL WOLF: Did you tell me where you were?
APPELLANT: No.
At the end of direct examination, the prosecutor asked to approach the bench, and an
off-the-record bench conference took place. The court reporter did not record what was said
during this conference. The transcript of the record on appeal provides only, (At the
in-camera proceeding, the Court has declared that Mr. Manley has waived the attorney-client
privilege.)
During cross-examination the next day, the court noted Wolf's continuing objection to the
court's finding as to waiver. Directly thereafter, the prosecutor asked appellant a series of
questions concerning what he told Wolf and Robinson.
thereafter, the prosecutor asked appellant a series of questions concerning what he told Wolf
and Robinson. The prosecutor began by asking appellant, When you told [Wolf and
Robinson] the story of the accident did you recognize the importance of telling them
everything? Appellant replied that he did not know whether he told them everything or not.
The prosecutor then asked appellant the following questions, among others: Did you tell
them the truth?; Did you give those attorneys a part of a watch?; Did you tell those
attorneys that that watch was broken off during the struggle with Roxanne?; Did you give
the attorneys clothing?; And did you tell your attorneys that those were the clothes that you
were wearing on the night of the unfortunate accident? Appellant answered all of these
questions affirmatively.
The prosecutor also asked appellant, Did you tell your attorneys that you were, when you
were sitting on the couch in the house that you were startled by Roxanne and [her friend]
entering the house?, Did you tell them that you drew your weapon believing these [sic]
were prowlers?, Did you tell them that seeing that it was Roxanne you put the nine
millimeter between the cushions?, and Did you tell them that the cushions were a normal
hiding place for the gun? Appellant responded negatively to these questions.
In response to the prosecutor's additional questions, appellant testified that he told his
attorneys that he and Logan had been arguing about her missing wallet, credit cards, and cash;
did not tell his attorneys that she had accused him of stealing those items; told them that he
left the living room to go to the kitchen; did not tell them that Logan left the bedroom and
went to the couch to get the gun; did not tell them that after she got the gun from the couch
she continued to accuse him of stealing her wallet, credit cards, and cash; told them that he
tried to take the gun away from her; did not tell them that he forced her right arm up behind
her back; and did not tell them that as he pushed her arm up behind her back, the gun went off
accidentally, killing her.
At the next break, the court stated that its ruling had been that the attorney-client privilege
between appellant and Wolf had been waived, and that the court did not intend to make that
finding as to Robinson. The prosecutor then stated that he believed that the court had
concluded that the privilege had been waived as to both Wolf and Robinson, and Wolf said
that he objected to any waiver. The court responded that appellant waived the privilege
himself.
DISCUSSION
Appellant contends that the district court erred in determining that the attorney-client
privilege was waived as to Wolf without making any findings on the record as to the basis
for the waiver, and in allowing the prosecutor to cross-examine him about his
conversations with Robinson as well.
making any findings on the record as to the basis for the waiver, and in allowing the
prosecutor to cross-examine him about his conversations with Robinson as well. Appellant
also argues that even if he chose to waive the privilege by testifying about discussions with
Wolf on certain subjects, any waiver was limited to those subjects and would not encompass
discussions about the shooting. Finally, appellant argues that the cross-examination on
privileged matters deprived him of assistance of counsel and due process under the Sixth and
Fourteenth Amendments to the United States Constitution. See U.S. Const. amends. VI and
XIV, 1.
Initially, we note that a determination on the record as to why the privilege was waived
would have facilitated this court's review of this issue. We further note that Supreme Court
Rule 250 currently requires the district court to ensure that all proceedings in a capital case
are reported and transcribed. See SCR 250(5)(a).
The attorney-client privilege
In questioning appellant, the prosecutor delved into matters which can only be
characterized as confidential communications between appellant and his attorneys, which are
protected by the attorney-client privilege. See NRS 49.055 (defining confidential
communication); NRS 49.095 (client has a privilege to refuse to disclose, and to prevent
anyone else from disclosing, confidential communications between the client and the lawyer
made to facilitate giving legal services to the client); NRS 49.105 (client may claim privilege,
or lawyer may do so on behalf of client).
No waiver of the attorney-client privilege
[Headnotes 13]
As set out above, appellant testified on direct examination as to two conversations with
Wolf: one on a drive from San Diego to Las Vegas, and the other on the telephone when
appellant jumped bail. Where a client voluntarily reveals portions of the communications
with the attorney, those revelations amount to a waiver of the attorney-client privilege as to
the remainder of the conversation or communication about the same subject matter.' Lisle v.
State, 113 Nev. 679, 701, 941 P.2d 459, 473 (1997) (quoting In re Grand Jury Jan. 246, 651
N.E.2d 696, 700 (Ill. App. Ct. 1995)), cert. denied, 525 U.S. 830 (1998). However, for waiver
to occur, the witness's answers must be wide enough in scope and deep enough in
substance to constitute a significant part of the communication. ' Id. (quoting Mitchell v.
Superior Court, 691 P.2d 642, 648 (Cal. 1984) (quoting Travelers Ins. Co. v. Superior Court,
191 Cal. Rptr. S71 {Ct. App. 19S3))).
ing Travelers Ins. Co. v. Superior Court, 191 Cal. Rptr. 871 (Ct. App. 1983))). Merely
acknowledging the fact that the witness discussed a subject with his attorney does not waive
the privilege. Id.
[Headnote 4]
Appellant did not disclose a significant part of his communications with Wolf: he only
testified on direct examination that Wolf told him not to say anything, Wolf was upset when
appellant telephoned him, and appellant did not tell Wolf where he was. This minimal
disclosure did not constitute a waiver of the attorney-client privilege. See People v. Kor, 277
P.2d 94, 99-100 (Cal. Ct. App. 1954) (holding that defendant's statements on direct
examination that he told his attorney what had happened were general statements which did
not disclose what the defendant said in substance, that defendant did not voluntarily disclose
privileged communications in his responses to questions on cross-examination by
co-defendant's counsel and prosecutor, and that the trial court erred in permitting examination
of defendant's attorney as to those confidential communications). Accordingly, we conclude
that the district court erred in concluding that appellant waived the privilege and in permitting
the prosecutor to cross-examine appellant as to privileged matters.
1

Violation of the attorney-client privilege as a Sixth Amendment violation
[Headnote 5]
Appellant failed to provide any argument or authority addressing whether a violation of the
attorney-client privilege violated his right to counsel under the Sixth Amendment to the
United States Constitution, and whether such a violation is reversible per se or should be
reviewed under a harmless error standard. See Chapman v. California, 386 U.S. 18 (1967).
We address these issues despite this deficiency. We conclude that appellant's Sixth
Amendment right to counsel was violated.
[Headnote 6]
Although the attorney-client privilege has been termed merely a rule of evidence and not a
constitutional right, government interference with the attorney-client relationship may
implicate Sixth Amendment rights. Clutchette v. Rushen, 770 F.2d 1469, 1471 {9th Cir.
19S5) {citing Weatherford v. Bursey, 429 U.S. 545 {1977)).
__________

1
We note that, contrary to the state's assertion that Wolf made a second waiver of the privilege by discussing
a conversation with appellant, Wolf could not waive the privilege. While the attorney may claim the privilege on
the client's behalf, only the client has the ability to waive it. See NRS 49.095.
(9th Cir. 1985) (citing Weatherford v. Bursey, 429 U.S. 545 (1977)). Governmental intrusion
violates the Sixth Amendment only when it substantially prejudices the defendant. Id. Here,
we conclude that the prosecutor's inquiry into appellant's confidential relationship with his
attorneys substantially prejudiced appellant. The prosecutor's cross-examination damaged
appellant's credibility by implying that appellant had not been entirely truthful even with his
own attorneys, and had either omitted information detrimental to him or simply lied to them
regarding what happened the night of the shooting. The jury's assessment of appellant's
credibility was crucial in this case, where appellant claimed the shooting was accidental and
only appellant and Logan were present when she was shot. Therefore, we conclude that the
prosecutor's inquiry violated appellant's Sixth Amendment right to counsel.
Review under the harmless error standard
[Headnotes 7, 8]
We further conclude that this violation should be reviewed under the harmless error
standard enunciated in Chapman. Chapman held that before a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt. Chapman, 386 U.S. at 24. In Arizona v. Fulminante, 499 U.S. 279, 306-12
(1991), Chief Justice Rehnquist, speaking for a majority of the court, distinguished between
trial error and structural error in determining whether a federal constitutional violation
could be analyzed under the Chapman test or required automatic reversal. The Court
explained that structural error is a defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself. Id. at 310. Examples of
structural error include total deprivation of the right to counsel at trial, a judge who is not
impartial, the unlawful exclusion of members of the defendant's race from a grand jury,
deprivation of the right to self-representation at trial, and deprivation of the right to public
trial. Id. at 309-10. Because the entire conduct of the trial is affected, structural error defies
analysis by harmless-error standards. Id.
[Headnote 9]
Trial error, on the other hand, is any constitutional error which occurred during the
presentation of the case to the jury, and which may therefore be quantitatively assessed in the
context of other evidence presented in order to determine whether its admission was harmless
beyond a reasonable doubt. Id. at 307-0S.
307-08. We conclude that the instant error was simply an error in the trial process itself that
occurred during the presentation of the case to the jury and that did not affect the
framework within which the trial proceeded. See People v. Tamborrino, 263 Cal. Rptr. 731,
735-38 (Cal. Ct. App. 1989) (applying Chapman to a claimed violation of the attorney-client
privilege). Therefore, we believe that the instant error constitutes trial error, which is
susceptible to a harmless error analysis under Chapman.
Admittedly, Chapman indicates that a violation of the right to counsel may be error that is
reversible per se. Chapman explains that there are some constitutional rights so basic to a
fair trial that their infraction can never be treated as harmless error, citing Gideon v.
Wainwright, 372 U.S. 335 (1963), as support. Chapman, 386 U.S. at 23 & n.8. We do not
think that Chapman meant, in citing Gideon, that all errors involving the right to counsel are
reversible per se. This is particularly true where, as here, the deprivation of the right to
counsel differs greatly from that in Gideon. Whereas in Gideon the defendant did not have
counsel at trial because the trial court refused to appoint counsel under state law, in the
instant case appellant has been represented by counsel at all times.
2

[Headnote 10]
Applying Chapman, we are constrained to reverse appellant's conviction because we
cannot conclude beyond a reasonable doubt that the prosecutor's questioning did not
contribute to the verdict. That is, we cannot conclude that the district court's error in
permitting the prosecutor to cross-examine appellant as to what he told his attorneys was
harmless beyond a reasonable doubt. As explained above, appellant was substantially
prejudiced by the prosecutor's inquiry into whether he told his attorneys certain facts about
Logan's death.
__________

2
We, too, have cited Gideon, along with Glasser v. United States, 315 U.S. 60 (1942), and Doughty v.
Maxwell, 376 U.S. 202 (1964), for the proposition that automatic reversal occurs where the defendant is denied
substantive due process. Guyette v. State, 84 Nev. 160, 166-67 n.1, 438 P.2d 244, 248 n.1 (1968). However,
Guyette does not stand for the proposition that all errors involving the right to counsel are reversible per se.
Neither Glasser nor Doughty stands for the proposition that denial of the right to counsel, as occurred in the
instant case, constitutes error that is reversible per se. Glasser held that where the court appointed the
defendant's attorney to also represent a codefendant, the defendant's Sixth Amendment right to effective
assistance of counsel was denied because the attorney's representation of the defendant was not as effective.
Doughty reversed a judgment of conviction under Gideon where the defendant was not appointed counsel. See
also Doughty v. Sacks, 191 N.E.2d 727 (Ohio 1963), rev'd, 376 U.S. 202 (1964); Doughty v. Sacks, 183 N.E.2d
368 (Ohio 1962), vacated, 372 U.S. 781 (1963).
Other contentions
[Headnote 11]
Appellant also argues that the prosecutors committed misconduct. One of the prosecutors
inappropriately asked appellant why another witness would get an idea that an ex-convict
would want anal sex. This question, which was really a comment, essentially asked the
jurors to speculate that appellant engaged in anal sex while he was in prison. We conclude
that reversal is not warranted on this ground because appellant objected immediately and the
court sustained the objection and struck the question. See Stewart v. State, 94 Nev. 378,
379-80, 580 P.2d 473, 474 (1978). This same prosecutor also made several other comments
for which the court sustained objections or admonished the prosecutor. Although those
comments were inappropriate, they do not constitute reversible error.
[Headnote 12]
The other prosecutor also made an inappropriate comment, telling defense counsel,
Certainly we could do that one exhibit at a time for the mentally challenged, when defense
counsel asked that the prosecutor go more slowly in admitting an exhibit. Appellant failed to
object to this comment, and we conclude that it was not patently prejudicial. See Riker v.
State, 111 Nev. 1316, 1328, 905 P.2d 706, 713 (1995). On retrial, however, we direct the
prosecutors to refrain from interposing these kinds of remarks.
[Headnote 13]
Next, appellant argues that the district court abused its discretion in denying his motion for
a mistrial after the prosecutor questioned one of the state's witnesses about her conversation
with Wolf about appellant's alibi. Appellant claims that allowing the prosecutor to question
the witness as to the alibi forced him to testify in order to explain that he was not involved in
filing the notice of alibi. We conclude that the district court did not abuse its discretion in
denying appellant's motion for a mistrial. See Lisle, 113 Nev. at 700, 941 P.2d at 473.
Defense counsel timely filed the third amended notice of alibi only fourteen days before trial
and never formally withdrew that notice.
[Headnote 14]
Third, appellant argues that the district court erred in denying his motion to sever the
ex-felon in possession of a firearm charge from the other two counts charged. Although we
conclude that the court did not abuse its discretion here, on retrial the district court should
sever the ex-felon in possession of a firearm charge pursuant to Brown v. State, 114 Nev.
111S, 1126, 967 P.2d 1126, 1131 {199S).
suant to Brown v. State, 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998).
[Headnote 15]
Fourth, appellant argues that it is legally impossible to rob a dead person and that the jury
was therefore erroneously instructed on robbery. Appellant failed to object to the robbery
instruction or propose a different instruction when the court settled the jury instructions, and
we conclude that no patently prejudicial error occurred here which warrants this court's
consideration of this issue. See Flanagan v. State, 112 Nev. 1409, 1422, 930 P.2d 691, 700
(1996), cert. denied, 523 U.S. 1083, 118 S. Ct. 1534-35 (1998); Sheriff v. Jefferson, 98 Nev.
392, 649 P.2d 1365 (1982); Norman v. Sheriff, 92 Nev. 695, 558 P.2d 541 (1976).
[Headnote 16]
Fifth, appellant argues that the district court abused its discretion in limiting closing
argument because that limitation denied him due process, infringed upon his right to counsel
under the Sixth Amendment to the federal constitution, and prejudiced him. We conclude that
the district court did not abuse its discretion in limiting closing argument to two hours at the
conclusion of the evidentiary phase of trial and in not permitting defense counsel an
additional ten minutes to argue. The prosecutor only argued for seven minutes more than
defense counsel and the jury had already retired to begin deliberations when appellant
requested more time. Cf. Collier v. State, 101 Nev. 473, 481-82, 705 P.2d 1126, 1131-32
(1985) (setting aside death sentence where penalty phase closing argument was limited to one
hour), modified on other grounds by Howard v. State, 106 Nev. 713, 719, 800 P.2d 175, 178
(1990).
[Headnote 17]
Sixth, appellant argues that his state statutory and federal constitutional speedy trial rights
were violated. Appellant's state statutory right to a speedy trial was not violated. Even though
appellant invoked his right to trial within sixty days after arraignment, appellant waived that
time limit by instructing his attorney to file a pre-trial petition for a writ of habeas corpus. See
NRS 34.700; NRS 178.556(1). Further, the habeas petition was not deficient, as appellant
claims. In the petition, appellant consented to continue the trial indefinitely if the petition was
not decided within fifteen days before the date set for trial; appellant also personally
authorized his attorney to file the petition. See NRS 34.700(1)(b). Further, NRS 34.700 is
not unconstitutional. See Randolph v. Sheriff, 93 Nev. 532, 534, 569 P.2d 408, 410 (1977).
[Headnote 18]
Neither was appellant's federal constitutional right to a speedy trial violated. Admittedly,
appellant had to wait approximately two years and three months after arraignment before
going to trial. However, appellant was responsible for the part of the delay caused by filing
the habeas petition, adding Wolf as his counsel, and moving to continue the trial date. The
other reasons for the delay were legitimate conflicts with the state's and the court's schedules.
Appellant also failed to show particularized prejudice arising from the delay. Appellant
provides no facts to support his argument that the state's jailhouse snitches were
manufactured during the delay. Further, appellant caused any prejudice that resulted from
the testimony of the jailhouse snitches by speaking with them in the first place. In addition,
any prejudice appellant suffered from the jury learning that he jumped bail was his own fault.
See Doggett v. United States, 505 U.S. 647, 655-56 (1992); Barker v. Wingo, 407 U.S. 514,
530 (1972).
[Headnote 19]
Last, appellant argues that, in the penalty phase, the state should not have been able to seek
both the receiving money and the robbery aggravating circumstances because they arise
from the same act. We agree that the receiving money and the robbery aggravating
circumstances are duplicative here. See Lane v. State, 114 Nev. 299, 304, 956 P.2d 88, 91
(1998). The state may not seek both of these aggravating circumstances when they are based
on the same facts.
Appellant also argues that the district court erred in failing to sua sponte stop witnesses
from mentioning his criminal history, the district court directed demeaning comments to
defense counsel which denied him a fair trial, the court abused its discretion in sustaining
objections to certain defense testimony, insufficient evidence was presented to convict him of
robbery, the jury instructions did not properly define first degree murder, and the court erred
in instructing the jury that its verdict may never be influenced by sympathy. We have
considered these contentions and conclude that they lack merit.
CONCLUSION
We conclude that the district court erred in ruling that appellant waived his attorney-client
privilege and in permitting the state to cross-examine appellant concerning matters he
discussed with his attorneys. The disclosure of privileged attorney-client information during
that cross-examination violated appellant's Sixth Amendment right to counsel, which we
conclude did not constitute harmless error in this case.
Amendment right to counsel, which we conclude did not constitute harmless error in this
case. Accordingly, we reverse appellant's conviction and remand for further proceedings
consistent with this Opinion.
3

Leavitt, J., dissenting:
I agree with the majority that the alleged error concerning violation of the attorney-client
privilege is susceptible to a harmless error analysis under Chapman v. California, 386 U.S. 18
(1967). However, unlike the majority, I conclude that this error was harmless and the
judgment therefore need not be reversed. The test in such cases is whether it is clear beyond a
reasonable doubt that the admission of the evidence did not contribute to appellant's
conviction. See id. at 24.
Appellant originally sought to be represented by Roland Robinson and initially consulted
with Robinson; however, at trial Mark Wolf represented appellant. Appellant voluntarily took
the stand and testified on direct examination about the contents of the conversations he had
with Wolf on two occasions. The district court then made a ruling that by mentioning this on
direct examination he had waived his attorney-client privilege. It is unclear whether the
district court ordered the privilege waived as to Wolf only or as to both Wolf and Robinson.
The next day the prosecutor began questioning appellant on cross-examination by asking,
Did you tell your attorneys . . . ? He then recited facts favorable to the state's case. The
prosecutor could have asked the same questions by simply stating, Is it true . . . ? He then
could have recited facts favorable to the state.
The rule established in Lisle v. State, 113 Nev. 679, 701, 941 P.2d 459, 474 (1997),
requires that before a waiver occurs the witness's answers must be wide enough in scope
and deep enough in substance to constitute a significant part of the communication. ' Id.
(quoting Mitchell v. Superior Court, 691 P.2d 642, 648 (Cal. 1984) (emphasis omitted)
(quoting Travelers Ins. Companies v. superior Court, 191 Cal. Rptr. S71 {Ct. App. 19S3))).
__________

3
The dissent correctly notes that the case against appellant was strong and that breaches of the attorney-client
privilege are subject to a harmless error analysis. In our view, however, the incursion into the attorney-client
relationship was so prolonged and profound that such an analysis cannot save this conviction.
Further, given the heightened due process standard that applies to death penalty cases, the defense of this
matter by appellant's attorneys would ultimately require a retrial following lengthy post-conviction proceedings
in either state or federal court. Thus, rather than delay the inevitable and risk the loss of evidence/witnesses over
time, a new trial should be commenced at the earliest possible time.
Ins. Companies v. Superior Court, 191 Cal. Rptr. 871, 876 (Ct. App. 1983))). It is clear in this
instance that appellant did not waive the privilege because he did not testify about a
significant part of the communication.' Id. (quoting Travelers, 191 Cal. Rptr. at 876).
Cross-examination of witnesses is limited to the subject matter of the direct examination
and matters affecting the credibility of a witness. NRS 50.115(2).
1
Therefore, it was proper
for the prosecutor during cross-examination to ask questions concerning appellant'stestimony
about what happened the night of the shooting to test his credibility. Although the prosecutor
prefaced his questions with, Did you tell your attorney . . . ?, he was merely pointing out
the differences between appellant's testimony and the state's version of what occurred.
Appellant told other people different versions of what happened that night.
Appellant fled the jurisdiction after posting bail and was only caught after being the
subject of the national television program, America's Most Wanted. He has threatened
witnesses who testified against him in his previous felony trials, declaring that he would kill
them. He placed a rifle in the vagina of one victim and threatened to kill her. The victim in
this case was killed execution style
2
while she was so drunk she had fallen off a barstool,
and a friend had to bring her home because she could not walk straight. Appellant's claim of
accidental shooting is diminished by his failure to call an ambulance. Instead, he grabbed his
clothes, the keys to the truck, and fled to California in an attempt to set up an alibi defense.
This court must examine the alleged errors to determine if they were so harmless that the
verdict would be the same beyond a reasonable doubt. The issue of guilt and innocence is not
even close in this case. Appellant admitted killing Logan, but claimed it was an accident. The
jury found otherwise beyond a reasonable doubt. The gravity of the crime requires close
examination of any alleged errors, but appellant's admission under oath that he killed Logan,
outweighs any alleged error. Further the condition of Logan before the killing made it
unlikely that she would have struggled with appellant, and finally the testimony of
experts indicates Logan was killed "execution style."
__________

1
NRS 50.115(2) reads: Cross-examination is limited to the subject matter of the direct examination and
matters affecting the credibility of the witness, unless the judge in the exercise of discretion permits inquiry into
additional matters as if on direct examination.

2
The bullet entered below the right ear and exited above the left eye. An expended bullet was discovered
under her head where her body was found on the floor. An expert witness testified that the entry wound to
Logan's head indicated the muzzle of the weapon was next to her skin when fired. There was also testimony that
the exit wound was made while her head was in contact with a solid object.
before the killing made it unlikely that she would have struggled with appellant, and finally
the testimony of experts indicates Logan was killed execution style. [The] evidence
against [appellant was] substantial enough to convict him in an otherwise fair trial, and . . .
[t]he verdict would have been the same in the absence of [any alleged] error. Homick v.
State, 112 Nev. 304, 316, 913 P.2d 1280, 1288 (1996).
3
Appellant is not entitled to a
perfect trial, but only to a fair trial, which he received. Ennis v. State, 91 Nev. 530, 533, 539
P.2d 114, 115 (1975) (citing Michigan v. Tucker, 417 U.S. 433, 446 (1974)). The conviction
and sentence by the jury should be affirmed.
____________
115 Nev. 129, 129 (1999) Dangberg Holdings v. Douglas Co.
DANGBERG HOLDINGS NEVADA, L.L.C., Appellant, v. DOUGLAS COUNTY and ITS
BOARD OF COUNTY COMMISSIONERS, a Political Subdivision of the State of
Nevada; STATE OF NEVADA, ex rel., Its Division of State Parks; RUSSELL E.
WHITE, YVONNE LE MAITRE and RICHARD D. BRUGA, as Personal
Representatives of THE ESTATE OF KATRINA D. GLIDE, Deceased, Respondents.
No. 30556
DANGBERG HOLDINGS, L.L.C., Petitioner, v. THE NINTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF DOUGLAS,
and THE HONORABLE CARL J. CHRISTENSEN, Senior Judge, Respondents, and
RUSSELL E. WHITE, YVONNE LE MAITRE, and RICHARD D. BRUGA,
Personal Representatives of THE ESTATE OF KATRINA D. GLIDE, and THE
STATE OF NEVADA, ex rel., Its Division of State Parks, Real Parties in Interest.
No. 31068
June 7, 1999 978 P.2d 311
Consolidated petition for writ of certiorari and appeal from an injunctive order of the
district court prohibiting the parties from formalizing an agreement between the Douglas
County Board of Commissioners and Dangberg Holdings, L.L.C. Ninth Judicial District
Court, Douglas County; Carl J. Christensen, Senior Judge.
__________

3
Other alleged errors by the trial judge concerning rulings on evidence are without merit and will not be
considered here.
County filed an action against purchaser of ranch property for specific performance of the
original purchase agreement, providing that upon the death of the vendors' last surviving
granddaughter, the ranch would be offered to the county or the State for use as a historic
museum and park. Subsequently, the State and the estate of the last surviving granddaughter
moved to intervene. The district court granted motions to intervene, and issued a temporary
stay to prevent purchaser and county from consummating a settlement agreement. Purchaser
petition for writ of certiorari, challenging the grant of intervention, and appealed from the
injunctive order. The supreme court held that: (1) intervention was not untimely; (2) allowing
State and estate to intervene was not a manifest abuse of discretion; (3) intervenors made the
requisite showing of reasonable likelihood of success on the merits and probability of
irreparable harm; (4) preliminary injunction set forth in sufficient detail the acts to be
restrained and the specific reasons for its issuance; and (5) failure to require a bond was not
fatal to the injunctive order.
Petition denied, injunctive order affirmed.
Maupin, J., dissented.
Woodburn and Wedge, Gordon H. DePaoli, Suellen Fulstone, and Dale E. Ferguson,
Reno; Brooke & Shaw and Charles S. Zumptf, Minden, for Appellant and Petitioner.
Terzich & Jackson, Gardnerville; Timothy W. Pemberton, Woodfords, California, for
Respondents and Real Parties in Interest Russell E. White, Yvonne Le Maitre, and Richard D.
Bruga.
Scott W. Doyle, District Attorney, and Robert T. Morris, Chief Deputy District Attorney,
Douglas County, for Respondents Douglas County and Its Board of County Commissioners.
Frankie Sue Del Papa, Attorney General, and George Taylor, Deputy Attorney General,
Carson City, for Respondent and Real Party in Interest State of Nevada, ex rel., Its Division
of State Parks.
1. Certiorari.
Writ of certorari is an extraordinary remedy and the decision to entertain such a petition is within
supreme court's discretion. NRS 34.020(2).
2. Certiorari.
On certiorari review, if it is determined that the act complained of was within the jurisdiction of the tribunal,
supreme court's inquiry stops even if the decision or order was incorrect.
was within the jurisdiction of the tribunal, supreme court's inquiry stops even if the decision or order was
incorrect. NRS 34.020(2).
3. Parties.
Evidence did not indicate that a settlement was ever finalized prior to parties' intervention, and thus, intervention was not
statutorily precluded as untimely. There was no written settlement agreement in the appendices or exhibits, and by counsel's own
admission, litigants ceased work on the settlement agreement on order of the trial court after party filed its motion to intervene. NRS
12.130.
4. Parties.
Allowing State and estate of original ranch vendors' granddaughter to intervene to challenge settlement agreement between ranch
purchaser and county which allegedly violated original ranch purchase agreement, requiring that ranch be offered to county or State for
use as a historic museum and park upon the death of the vendors' last granddaughter, was not a manifest abuse of discretion, despite
purchaser's claim of prejudice. State and estate intervened within two months of learning of the settlement agreement, and bringing all
parties together in one proceeding before one tribunal would foster the principles of judicial economy and finality. NRCP 24.
5. Mandamus.
Writ of mandamus may be granted to compel the performance of an act which the law requires as a duty resulting from an office,
trust, or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
6. Mandamus.
Decision whether to entertain a writ of mandamus is within supreme court's discretion and will not be issued if the petitioner has a
plain, speedy, and adequate legal remedy. NRS 34.170.
7. Parties.
Most important question to be resolved in the determination of the timeliness of an application for intervention is not the length of
the delay by the intervenor but the extent of prejudice to the rights of existing parties resulting from the delay. NRCP 24.
8. Injunction.
State and estate of original ranch vendors' granddaughter were entitled to preliminary injunctive relief preventing ranch purchaser
and county from formalizing a settlement agreement which allegedly violated original ranch purchase agreement, requiring that ranch
be offered to the county or the State for use as a historic museum and park upon the death of the last granddaughter. State had a
reasonable probability of success in enforcing its rights, and estate's interest in realizing the conversion of the ranch into a historical
museum was no less significant.
9. Injunction.
Preliminary injunction is available if an applicant can show a likelihood of success on the merits and a reasonable probability that
the non-moving party's conduct, if allowed to continue, will cause irreparable harm for which compensatory damage is an inadequate
remedy. NRS 33.010.
10. Appeal and Error; Injunction.
Decision whether to grant a preliminary injunction is within the sound discretion of the district court, whose decision will not be
disturbed on appeal absent an abuse of discretion. NRS 33.010.
11. Injunction.
Preliminary injunction precluding ranch purchaser and county from formalizing a settlement agreement
which allegedly violated original ranch purchase agreement, requiring that ranch be offered to county or
State for use as a historic museum and park upon the death of the vendors' last granddaughter, set forth in
sufficient detail the acts to be restrained and the specific reasons for its issuance. Trial court indicated that
the reason for the relief was to avoid foreclosing the State from having a park, and court ordered a stay of
any further action on the purported settlement agreement.
12. Injunction.
Failure to require a private party to post a bond or other security did not invalidate preliminary injunctive relief granted in that
party's favor where State, which was exempt from the bond requirement, was also a requesting party. NRCP 65(c).
13. Constitutional Law; Injunction.
Grant of a preliminary injunction precluding ranch purchaser and county from formalizing a settlement agreement which allegedly
violated original ranch purchase agreement, requiring that ranch be offered to county or State for use as a historic museum and park
upon the death of the vendors' last granddaughter, did not violate purchaser's due process rights of notice and an opportunity to be
heard, even though purchaser was provided only several minutes of notice. Temporary preservation of the status quo was appropriate,
and purchaser was afforded a reasonable opportunity to be heard. U.S. Const. amend. 14; NRCP 65(a).
OPINION
Per Curiam:
In 1977, the shareholders of a large forty-thousand-acre ranching operation in Northern
Nevada sold their interest to several purchasers with the express condition that three
granddaughters of the ranch's founder be permitted to use the home ranch as a residence for
the rest of their lives. Additionally, the sale agreement provided that upon the death of the last
surviving granddaughter, the home ranch and its adjoining ten acres would be offered to
Douglas County or alternatively to the State of Nevada for use as a historic museum and park.
The ranch was parceled out during the course of the next fifteen years and sold to various
interests. In 1995, Dangberg Holdings, L.L.C. (Dangberg Holdings), purchased a 9900-acre
parcel that included the ten-acre home ranch. That same year, the last surviving
granddaughter died. In 1996, Douglas County filed an action against Dangberg Holdings for
specific performance of the original purchase agreement. In 1997, the State of Nevada and the
estate of the last surviving granddaughter (the Glide Estate) each filed motions to
intervene after learning of settlement negotiations between Dangberg Holdings and
Douglas County.
each filed motions to intervene after learning of settlement negotiations between Dangberg
Holdings and Douglas County.
At a hearing shortly thereafter, the district court granted the estate and the State of
Nevada's motions to intervene. Additionally, the district court issued a temporary stay to
prevent Dangberg Holdings and Douglas County from consummating their settlement
agreement.
Dangberg Holdings contends that the district court exceeded its jurisdiction in granting the
Glide Estate and the State of Nevada's motions to intervene, and thus it petitions this court for
a writ of certiorari directing the district court to vacate its order permitting intervention.
Additionally, Dangberg Holdings appeals from the district court's issuance of a preliminary
injunction preventing Douglas County and Dangberg Holdings from finalizing their
settlement agreement. For the reasons set forth below, we deny Dangberg Holding's petition
for a writ of certiorari, and we affirm the order of the district court imposing a preliminary
injunction to prevent Douglas County and Dangberg Holdings from consummating their
settlement agreement.
FACTS
In 1977, the H.F. Dangberg Land and Livestock Company (the company) operated a large
ranching operation on forty thousand company-owned acres in Northern Nevada and
California. In March 1977, the nine shareholders of the company agreed to sell all of their
outstanding stock to several purchasers by way of a stock purchase agreement (1977 sale
agreement). Included in the group of selling shareholders were three sistersRuth Achard
(Achard), Margaret McDonald (McDonald), and Katrina Glide (Glide)who were also the
granddaughters of the company's founder, H.F. Dangberg, Sr.
At the time of the agreement, Achard and McDonald resided on a small portion of the
ranch property. In recognition of the sellers' intention to condition the sale on all three sisters'
right to remain on the premises, the eighth paragraph of the agreement provided:
It is expressly understood and agreed by the parties that RUTH D. ACHARD and
MARGARET D. McDONALD have for many years resided on property of
DANGBERG known as the Home Ranch. Said persons are stockholders of
DANGBERG and desire to continue to reside on said DANGBERG property.
Accordingly, sale of the corporate stock of DANGBERG to the Purchasers is made
expressly subject to their continued right to reside on DANGBERG property, and
Purchasers expressly agree that they will execute or agree to the execution of whatever
legal documents may be required to insure such continued right of residence of
RUTH D. ACHARD, MARGARET D. McDONALD and their sister, KATRINA D. GLIDE, as
expressed in the letter dated March S, 1977 from FRANK ImMASCHE to LOWELL C.
BERNARD, a copy of which is attached hereto and made a part hereof.
the execution of whatever legal documents may be required to insure such continued
right of residence of RUTH D. ACHARD, MARGARET D. McDONALD and their
sister, KATRINA D. GLIDE, as expressed in the letter dated March 8, 1977 from
FRANK ImMASCHE to LOWELL C. BERNARD, a copy of which is attached hereto
and made a part hereof.
In addition to the foregoing, it is expressly understood and agreed by the parties that
sale of the corporate stock of DANGBERG is made expressly subject to an offer of
certain Home Ranch property to the State of Nevada and/or the County of Douglas, for
use as an historic ranch site, all as expressed and set forth in the letter dated March 8,
1977 from FRANK ImMASCHE to LOWELL C. BERNARD, a copy of which is
attached hereto and made a part hereof.
Additionally, the twelfth paragraph of the agreement provided that [t]he terms of the
agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs,
personal representatives, successors and assigns.
On March 8, 1977, shareholder Frank ImMasche drafted a letter to the purchasers
apprising them of several conditions on the 1977 sale agreement. ImMasche's letter, which
was incorporated by reference into the agreement, indicated that:
In addition to the condition and requirement . . . providing for the continued right (such
right to be documented by a separate agreement with the Purchasers) of Margaret D.
McDonald, Ruth D. Achard and Katrina D. Glide, to use the Home Ranch as their
residence for as long as they wish during the remainder of their lives, the following
amendments, conditions and requirements are added:
. . . .
When use of the Home Ranch and grounds by [the sisters] is terminated, the complete
Home Ranch headquarters area, including the residence and all the structures used in
the original ranch operations . . . are to be offered for donation to the State of Nevada
and/or County of Douglas for use as an historic ranch site, thereby preserving and
making available facilities and equipment of historic interest in the development of
American agriculture for future generations to see. . . .
. . . .
The State of Nevada and/or County of Douglas shall have one (1) year from date of
such offer to accept same for the purpose of becoming a part of their park program and,
if not accepted, then and in such event the Purchasers shall be under no further
obligation hereunder.
accepted, then and in such event the Purchasers shall be under no further obligation
hereunder.
. . . .
After the sale was finalized, two of the principal purchasersJohn Anderson and Nevis
Industries, Inc.entered into a long-term lease with the three sisters. Pursuant to the terms of
the March 29, 1978, lease, Achard, McDonald, and Glide were entitled to reside in the
Dangberg Home Ranch for the remainder of their lives for the nominal consideration of $1.00
per year. Significantly, the ninth paragraph of the lease provided:
HISTORICAL PARK OFFER: Upon the last surviving Lessee having died or upon
the abandonment of the premises by all or by the last surviving Lessee, the Lessors do
irrevocably agree to offer the Home Ranch . . . together with a thirty (30) foot
roadway easement from Highway 88 . . . to the State of Nevada and/or Douglas County,
. . . for purposes of a historical park. . . . Lessors agree to make such offer and keep said
offer open for a period of one (1) year from date of said offer. Thereafter, said offer and
any obligation under this paragraph . . . may be withdrawn, terminated or extended at
the sole and absolute discretion of Lessor.
The lease was recorded in Douglas County on March 30, 1978. In 1981, John Anderson
and Nevis Industries applied for and received approval from Douglas County for a parcel map
encompassing the Dangberg Home Ranch as a historical museum.
Over the course of the next fifteen years, the original forty-thousand-acre ranch was
parceled out and conveyed to various interests. Although the specific transaction date is not
evident, at some point during this period Jack Anderson and Nevis Industries, Inc. conveyed a
9900-acre parcel that included the Dangberg Home Ranch to Robert L. Helms. Helms, in
turn, sold this 9900-acre parcel to the Slash Bar H Limited Partnership, and, in September
1995, Slash Bar H Ltd. sold the 9900-acre parcel to Dangberg Holdings, L.L.C.
In July 1995, Katrina Glide, the last surviving sister, died. In October 1995, at the request
of the Douglas County Commissioners, J. Stephen Weaver, Chief of Planning and
Development for the Nevada Department of Conservation and Natural Resources, wrote a
letter to the Douglas County Commission indicating that the State did not intend to pursue the
Dangberg Ranch as a state park. However, in the same letter, Weaver indicated that the State
felt that the site was worth preserving and that the Division of State Parks would certainly
support any effort that Douglas County may pursue to that end.
In July 1996, within one year of Glide's death, Douglas County filed suit against Dangberg
Holdings seeking declaratory relief and specific performance of the 1977 agreement. Douglas
County alleged that pursuant to the 1977 agreement, Frank ImMasche's 1977 letter that had
been incorporated into the agreement, and the 1978 lease agreement, Dangberg Holdings was
obligated to offer the Home Ranch to Douglas County for preservation as a historical
museum. A trial date was eventually scheduled for October 20, 1997.
On March 12, 1997, Dangberg Holdings purportedly delivered a written settlement offer to
Douglas County that was open for acceptance until March 20, 1997. Pursuant to the terms of
the settlement offer, Douglas County would agree to: (1) relinquish the Dangberg Home
Ranch as a historical museum site; (2) take possession of all tangible personal property in the
Home Ranch that had previously belonged to the Glide Estate; and (3) move such personal
property to one of the county's existing museums for display. In return, Dangberg Holdings
would agree to make a cash donation of $35,000.00 to the local Douglas County museum to
defray the cost of displaying the personal property taken from the Dangberg Home Ranch.
On March 20, 1997, at a regularly scheduled public Douglas County Commission meeting,
commissioners discussed Dangberg Holdings' settlement offer and agreed to submit a
counter-offer raising Dangberg Holdings' cash donation from $35,000.00 to $50,000.00.
There is no evidence indicating that Dangberg Holdings accepted Douglas County's
counter-offer.
On April 9, 1997, the Glide Estate filed a motion to intervene in the litigation pending
between Dangberg Holdings and Douglas County. In its motion, the Glide Estate claimed that
it had an unconditional right to intervene pursuant to NRCP 24(a) and NRCP 19(a) because
of its alleged interest in the personal property within the Dangberg Home Ranch.
Additionally, on May 6, 1997, the State of Nevada filed its motion to intervene, claiming that
it had an unconditional right to intervene to enforce the prior agreements specifying that the
Dangberg Home Ranch would be preserved as a historical site.
On April 10, 1997, after learning of settlement negotiations between Douglas County and
Dangberg Holdings, the district court ordered Douglas County and Dangberg Holdings to
temporarily cease any further work towards finalizing their settlement agreement. Thereafter,
the district court set a May 9, 1997, hearing to consider the merits of the Glide Estate's and
State of Nevada's motions to intervene.
At the May 9, 1997, hearing, the Glide Estate and the State of Nevada argued that they
were entitled to intervene to enforce the prior agreements specifying that the Home Ranch
and tangible personal property therein would be preserved as a historical site.
prior agreements specifying that the Home Ranch and tangible personal property therein
would be preserved as a historical site. When the district court questioned the State as to
whether the 1995 letter from the Nevada Division of State Parks operated as a waiver of the
State's rights, the State explained that its decision not to pursue designation of the Dangberg
Home Ranch as a state park was conditional and based on its understanding that Douglas
County intended to pursue the site as a county museum and park.
After entertaining arguments on the matter, including consideration of Dangberg Holdings'
assertion that intervention was improper because Dangberg Holdings and Douglas County
had disposed of their litigation by way of a binding settlement agreement, the district court
granted the Glide Estate's and State of Nevada's motions to intervene. Following this ruling,
the Glide Estate and State of Nevada moved the district court for a preliminary injunction to
prevent Douglas County and Dangberg Holdings from finalizing their settlement agreement.
After hearing arguments on the matter, the district court ruled:
THE COURT: So what I want to do is stop everything until you confer and get your
pleadings up and proper motions and we see what it is. I can't decide the whole lawsuit
here today. All I can decide today is that these parties are allowed to intervene.
[COUNSEL FOR DANGBERG HOLDINGS]: Okay.
THE COURT: I'll just increase the stay. I'll enter a stay that any further action on the
purported settlement agreement between Dangberg Holdings, LLC, and Douglas
County is stayed until further order of the Court. Now, that ought to do it. Then we can
sort it out and deal the hands and decide who has the law on their side and who doesn't
and what is going to take place.
The district court memorialized its rulings in a written order filed on May 23, 1997.
Dangberg Holdings now petitions this court for a writ of certiorari directing the district
court to vacate its order permitting intervention, and appeals from the district court's issuance
of a preliminary injunction preventing Douglas County and Dangberg Holdings from
consummating their settlement agreement.
DISCUSSION
The district court did not exceed its jurisdiction in granting the Glide Estate and the State of
Nevada leave to intervene
[Headnote 1]
A writ of certiorari may be granted where an inferior tribunal, board, or officer exercising
judicial functions exceeds its jurisdiction and "there is no appeal, nor, in the judgment of
the court, any plain, speedy and adequate remedy."
tion and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate
remedy. NRS 34.020(2). The writ of certiorari is an extraordinary remedy and the decision
to entertain such a petition is within this court's discretion. Zamarippa v. First Judicial
District Court, 103 Nev. 638, 747 P.2d 1386 (1987).
[Headnote 2]
This court has often stated that the inquiry upon a petition for a writ of certiorari is
limited to whether the inferior tribunal acted in excess of its jurisdiction. Goicoechea v.
District Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980) (footnote omitted). Further,
[i]f it is determined that the act complained of was within the jurisdiction of the tribunal, our
inquiry stops even if the decision or order was incorrect. Id.
In the instant petition, Dangberg Holdings asserts that the district court exceeded its
jurisdiction in allowing the Glide Estate and the State of Nevada to intervene because the
litigation between Dangberg Holdings and Douglas County had been purportedly settled.
Specifically, Dangberg Holdings asserts that intervention was untimely pursuant to NRS
12.130 and NRCP 24. We disagree.
1. The Glide Estate's and State of Nevada's motions for intervention were timely pursuant
to NRS 12.130
[Headnote 3]
Dangberg Holdings contends that the district court exceeded its jurisdiction in allowing the
Glide Estate and the State of Nevada to intervene because the litigation between Douglas
County and Dangberg Holdings had been purportedly settled prior to their intervention.
Consequently, Dangberg Holdings asserts that their intervention was untimely pursuant to
NRS 12.130.
1. Before the trial, any person may intervene in an action or proceeding, who has an
interest in the matter in litigation, in the success of either of the parties, or an interest
against both.
2. An intervention takes place when a third person is permitted to become a party to
an action or proceeding between other persons, either by joining the plaintiff in
claiming what is sought by the complaint, or by uniting with the defendant in resisting
the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and
the defendant.
3. Intervention is made as provided by the Nevada Rules of Civil Procedure.
4. The court shall determine upon the intervention at the same time that the action is
decided. If the claim of the party intervening is not sustained, he shall pay all costs
incurred by the intervention.
Although the statutory language indicates that intervention must occur before trial, see
NRS 12.130(1), we have previously explained that:
[t]he plain language of NRS 12.130 clearly indicates that intervention is appropriate
only during ongoing litigation, where the intervenor has an opportunity to protect or
pursue an interest which will otherwise be infringed. The plain language of NRS 12.130
does not permit intervention subsequent to the entry of a final judgment.
Lopez v. Merit Ins. Co., 109 Nev. 553, 556, 853 P.2d 1266, 1267-68 (1993). Additionally, in
Ryan v. Landis, 58 Nev. 253, 260, 75 P.2d 734, 735 (1938) (quoting Henry & Lee Co. v.
Elevator Co., 42 Iowa 33 (1918)), we reiterated that:
intervention must be made before the trial commences. After the verdict all would
admit it would be too late to intervene. But a voluntary agreement of the parties stands
in the place of a verdict, and, as between the parties to the record as fully and finally
determines the controversy as a verdict could do.
In the instant case, although Dangberg Holdings argues that its settlement offer with
Douglas County operated as a final judgment that would bar subsequent intervention, our
review of the record has failed to produce evidence indicating that a settlement was ever
finalized prior to the Glide Estate's and State of Nevada's intervention. There is no written
settlement agreement in the appendices or exhibits, and by counsel's own admission, Douglas
County and Dangberg Holdings ceased work on the settlement agreement on order of the
district court after the Glide Estate filed its motion to intervene on April 9, 1997. Therefore,
the Glide Estate's and the State of Nevada's intervention was not barred by NRS 12.130 or
this court's intervention jurisprudence.
Moreover, the State had a sufficient interest in the matter to warrant intervention because
the purported settlement agreement between Douglas County and Dangberg Holdings
affected property rights that had been ostensibly granted to either the State of Nevada or
Douglas County by virtue of the 1977 agreement and 1978 lease agreement. Additionally, the
Glide Estate's interest in realizing the conversion of the Dangberg Home Ranch and the
tangible personal property therein into a historical site was sufficient to warrant its
intervention as well.
Accordingly, both the Glide Estate and the State of Nevada had a sufficient interest in the
Douglas County-Dangberg Holdings litigation to warrant intervention. There is no support in
the record for Dangberg Holding's assertion that a settlement agreement was ever finalized or
consummated. Therefore, we conclude that the Glide Estate and State of Nevada's motions
for intervention were timely within the meaning of NRS 12.130, and, thus, the district court
did not exceed its jurisdiction in granting intervention on this basis.
2. The Glide Estate's and the State of Nevada's intervention was not barred by NRCP 24
[Headnote 4]
Dangberg Holdings also argues that the district court manifestly abused its discretion in
allowing intervention because such intervention was untimely pursuant to NRCP 24.
Specifically, Dangberg Holdings asserts that the district court manifestly abused its discretion
in allowing intervention because it ignored the prejudice to Dangberg Holdings and Douglas
County. In making this claim, Dangberg Holdings does not contend that the district court
exceeded its jurisdiction, but instead asserts that the district court's action constituted an
arbitrary and capricious exercise of discretion. Accordingly, we shall construe this issue as a
request for this court's extraordinary relief by way of writ of mandamus.
[Headnotes 5, 6]
A writ of mandamus may be granted to compel the performance of an act which the law
requires as a duty resulting from an office, trust, or station, or to control an arbitrary or
capricious exercise of discretion. See NRS 34.160. The decision whether to entertain a writ of
mandamus is within this court's discretion and will not be issued if the petitioner has a plain,
speedy, and adequate legal remedy. Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d
1177, 1178 (1982); NRS 34.170.
NRCP 24 provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the property or transaction which is
the subject of the action and he is so situated that the disposition of the action may as a
practical matter impair or impede his ability to protect that interest, unless the
applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to
intervene in an action: {1) when a statute confers a conditional right to intervene;
or {2) when an applicant's claim or defense and the main action have a question of
law or fact in common.
one may be permitted to intervene in an action: (1) when a statute confers a conditional
right to intervene; or (2) when an applicant's claim or defense and the main action have
a question of law or fact in common. In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice the adjudication of the rights of
the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon
the parties as provided in Rule 5. The motion shall state the grounds therefor and shall
be accompanied by a pleading setting forth the claim or defense for which intervention
is sought. The same procedure shall be followed when a statute gives a right to
intervene.
[Headnote 7]
We have previously held that the timeliness of a motion to intervene pursuant to NRCP 24
is a matter within the sound discretion of the district court. Lawler v. Ginochio, 94 Nev. 623,
626, 584 P.2d 667, 668 (1978). The most important question to be resolved in the
determination of the timeliness of an application for intervention is not the length of the delay
by the intervenor but the extent of prejudice to the rights of existing parties resulting from the
delay. Id. at 626, 584 P.2d at 669.
In the instant case, we conclude that the district court did not manifestly abuse its
discretion in granting the Glide Estate's and State of Nevada's motions for intervention
pursuant to NRCP 24. As previously discussed, the Glide Estate and the State of Nevada had
a sufficient interest in the litigation between Dangberg Holdings and Douglas County that
warranted their intervention. Moreover, the consummation of the purported Dangberg
Holdings-Douglas County settlement agreement would have impeded the Glide Estate and
the State of Nevada's ability to protect their interests under the 1977 agreement and 1978
lease agreement.
Although Dangberg Holdings asserts that it was prejudiced as a result of the Glide Estate's
and the State of Nevada's delay in seeking intervention, our review of the record indicates that
there was no significant delay. Upon learning of the purported settlement agreement in March
1997, the Glide Estate filed its motion for intervention on April 9, 1997, and the State of
Nevada filed its motion on May 6, 1997. Dangberg Holdings has failed to demonstrate how it
was materially prejudiced by the Glide Estate's and the State of Nevada's rather expeditious
filing dates.
While we recognize that Dangberg Holdings may incur additional legal expenses as a
result of the Glide Estate's and the State of Nevada's intervention, Dangberg Holdings will
also derive long-term benefits from the prospect of defining its rights and obligations with
respect to all parties in one judicial proceeding.
obligations with respect to all parties in one judicial proceeding. Moreover, bringing all of the
parties together in one proceeding before one tribunal will foster the principles of judicial
economy and finality.
Accordingly, the district court did not manifestly abuse its discretion in allowing
intervention pursuant to NRCP 24.
1

The district court did not abuse its discretion in granting temporary injunctive relief
[Headnote 8]
Dangberg Holdings asserts that the district court abused its discretion in ordering a
preliminary injunction preventing Dangberg Holdings and Douglas County from finalizing
their settlement agreement. Specifically, Dangberg Holdings contends that the Glide Estate
and the State of Nevada failed to demonstrate that their success on the merits was reasonably
probable, and that they would be irreparably harmed in the event that the Dangberg
Holdings-Douglas County settlement agreement was finalized. We disagree.
[Headnotes 9, 10]
A preliminary injunction is available if an applicant can show a likelihood of success on
the merits and a reasonable probability that the non-moving party's conduct, if allowed to
continue, will cause irreparable harm for which compensatory damage is an inadequate
remedy. Pickett v. Comanche Construction, Inc., 108 Nev. 422, 426, 836 P.2d 42, 44 (1992);
see also NRS 33.010.
2
The decision whether to grant a preliminary injunction is within the
sound discretion of the district court, whose decision will not be disturbed on appeal absent
an abuse of discretion.
__________

1
Based on the foregoing discussion and reasoning, we conclude that Dangberg Holdings' additional argument
on appealthat neither the Glide Estate nor the State of Nevada had a cause of action against the settlement
agreement because they were legal strangers to the agreementis without merit.

2
NRS 33.010 provides that an injunction may be granted:
1. When it shall appear . . . that the plaintiff is entitled to the relief demanded, and such relief or any
part thereof consists in restraining the commission or continuance of the act complained of, either for a
limited period or perpetually.
2. When it shall appear . . . that the commission or continuance of some act, during the litigation,
would produce great or irreparable injury to the plaintiff.
3. When it shall appear, during the litigation, that the defendant is doing or threatens, or is about to
do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the
subject of the action, and tending to render the judgment ineffectual.
be disturbed on appeal absent an abuse of discretion. Number One Rent-A-Car v. Ramada
Inns, 94 Nev. 779, 781, 587 P.2d 1329, 1330 (1978).
As previously indicated, the State of Nevada received significant property rights in the
ten-acre Dangberg Home Ranch for use as a state park and historical museum by virtue of the
1977 sale agreement and the recorded 1978 lease agreement. Because the validity of these
prior agreements is uncontested, the State, as a beneficiary of those agreements, has a
reasonable probability of success in enforcing its rights pursuant to those agreements.
In similar fashion, the Glide Estate's interest in realizing the conversion of the Dangberg
Home Ranch and the tangible personal property therein into a historical museum is no less
significant. Because the purported Dangberg Holdings-Douglas County settlement agreement
allegedly violates the historical museum grant provisions embodied in the 1977 sale
agreement and the 1978 lease agreement, we conclude that the Glide Estate has demonstrated
a reasonable probability of success in ensuring that the terms of those prior agreements are
enforced.
Moreover, we conclude that the district court did not abuse its discretion in finding that the
Glide Estate and the State of Nevada made the requisite showing of irreparable harm and
inadequacy of legal remedies. At the May 9, 1997, hearing, the State argued that its interests
in maintaining the Dangberg Home Ranch as a historic state park would be irreparably
damaged as a result of the settlement agreement because Dangberg Holdings could use that
settlement as fulfillment of its obligations pursuant to the 1977 sale agreement and 1978 lease
agreement.
Accordingly, we conclude that the Glide Estate and the State of Nevada have made the
requisite showing of reasonable success on the merits and the probability of irreparable harm
as a result of the Dangberg Holdings-Douglas County settlement agreement. Therefore, the
district court's preliminary injunction preventing Dangberg Holdings and Douglas County
from finalizing their agreement did not constitute an abuse of discretion.
1. The district court's injunction order sets forth in sufficient detail the specific reasons for
its issuance and describes in reasonable detail the act or acts to be restrained
[Headnote 11]
In a related argument, Dangberg Holdings contends that the district court's preliminary
injunction must be vacated because it fails to set forth the specific reasons for its issuance and
fails to describe in reasonable detail the acts to be restrained. We disagree.
In Maheu v. Hughes Tool Co., 88 Nev. 592, 598, 503 P.2d 4, 8 (1972) (quoting Brumby
Metals, Inc. v. Bargen, 275 F.2d 46, 50 (7th Cir. 1960)), we explained that [a]n injunctive
order is an extraordinary writ subject to contempt for failure to comply and thus must be set
out in specific terms.' Similarly, in Las Vegas Novelty v. Fernandez, 106 Nev. 113, 119,
787 P.2d 772, 775-76 (1990), we reiterated that an injunctive order would be nullified
wherever the reasons for the injunction are not readily apparent elsewhere in the record, or
appellate review is otherwise significantly impeded due to lack of a statement of reasons.
In the instant case, the district court indicated that the reason underlying its grant of
temporary injunctive relief was to prevent the finalization of an agreement that would
possibly foreclose the State of Nevada from having a park that has always been intended
[and that] maybe . . . they should have. Because the rationale underlying the district court's
grant of temporary injunctive reliefto temporarily prevent Dangberg Holdings and Douglas
County from finalizing their settlement agreementis readily apparent from the record, we
conclude that the specificity requirement pursuant to Las Vegas Novelty has been satisfied.
Additionally, the district court's order described in reasonable detail the act or acts to be
restrained. At the conclusion of the May 9, 1997, hearing, the district court ordered that any
further action on the purported settlement agreement between Dangberg Holdings, LLC, and
Douglas County is stayed until further order of the Court. This language clearly apprised
Dangberg Holdings and Douglas County that they were to be restrained from taking any
further action in consummating their settlement agreement.
Accordingly, because the district court clearly specified the reason for its grant of
temporary injunctive relief, and set forth in sufficient detail the act or acts to be restrained, we
conclude that the district court did not abuse its discretion in granting temporary injunctive
relief on this basis.
2. The district court's injunction order is valid even though no bond or other security was
posted
Dangberg Holdings contends that the district court's May 9, 1997, temporary injunctive
order is void because the district court did not require the Glide Estate to post a bond or other
security. We disagree.
[Headnote 12]
In relevant part, NRCP 65 provides:
(c) Security. No restraining order or preliminary injunction shall issue except upon
the giving of security by the applicant, in such sum as the court deems proper, for the
payment of such costs and damages as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained.
payment of such costs and damages as may be incurred or suffered by any party who is
found to have been wrongfully enjoined or restrained. No such security shall be
required of the State or of an officer or agency thereof.
We have previously held that the district court's failure to require the applicant to post
security voids an order imposing a preliminary injunction. In Strickland v. Griz Corp., 92
Nev. 322, 323, 549 P.2d 1406, 1407 (1976), this court held that [w]here a bond is required
by statute before the issuance of an injunction, it must be exacted or the order will be
absolutely void.' (quoting Shelton v. District Court, 64 Nev. 487, 494, 185 P.2d 320, 323-24
(1947)).
Although our prior cases indicate that the district court's failure to require a bond or other
suitable security voids a preliminary injunction, NRCP 65(c) explicitly provides an exception
to the bond requirement for state agencies such as the Nevada Division of State Parks. While
Dangberg Holdings contends that the Glide Estate should still be required to post a bond, the
lack of a bond with respect to the Glide Estate does not invalidate the district court's
preliminary injunction due to the State's bond exemption.
While the purpose underlying the bond requirement is to protect those enjoined from
damages associated with the wrongful issuance of injunctions, NRCP 65(c) also evinces a
clear legislative prerogative to exempt state entities from the bond requirement. Accordingly,
the district court's injunctive order is valid pursuant to NRCP 65(c) because a State agency,
the Nevada Division of State Parks, was also a requesting party.
The district court did not violate Dangberg Holdings' due process rights of notice and an
opportunity to be heard in entering its temporary injunctive order
[Headnote 13]
Following the district court's grant of the Glide Estate and the State of Nevada's motions to
intervene, both the Glide Estate and the State of Nevada moved the district court for a
preliminary injunction to prevent Douglas County and Dangberg Holdings from finalizing
their settlement agreement. On appeal, Dangberg Holdings contends that the district court's
grant of the preliminary injunction violated its due process rights of notice and an opportunity
to be heard. We disagree.
As previously stated, the decision whether to grant a preliminary injunction is within the
sound discretion of the district court, whose decision will not be disturbed on appeal absent
an abuse of that discretion. Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 7S1, 5S7
P.2d 1329, 1330 {197S).
Nev. 779, 781, 587 P.2d 1329, 1330 (1978). NRCP 65(a) provides that [n]o preliminary
injunction shall be issued without notice to the adverse party.
In Farnow v. District Court, 64 Nev. 109, 118, 178 P.2d 371, 375 (1947), we explained
that:
Ex parte motions, that is, motions without notice, are of various kinds and are
frequently and commonly permitted under the Nevada law and practice. They are
frequently permissible in procedural matters, and also in situations and under
circumstances of emergency, as in the case of an application for an injunction to
prevent irreparable injury which would result from delay, and where there is no plain,
speedy and adequate remedy at law.
Similarly, in Rhodes Co. v. Belleville Co., 32 Nev. 230, 239, 106 P. 561, 563 (1910), we
reiterated that:
A preliminary injunction maintaining the status quo may properly issue whenever the
questions of law or fact to be ultimately determined in a suit are grave and difficult, and
injury to the moving party will be immediate, certain, and great if it is denied, while the
loss or inconvenience to the opposing party will be comparatively small and
insignificant if it is granted.
In the instant case, the Glide Estate and the State of Nevada moved the district court for a
preliminary injunction only after the court had orally granted their motions to intervene.
While Dangberg Holdings was provided only several minutes of notice prior to the district
court's issuance of the preliminary injunction, we conclude that a temporary preservation of
the status quo was appropriate in this case due to the probability of irreparable harm to the
Glide Estate and State of Nevada's interests in the event that the Dangberg Holdings-Douglas
County settlement agreement was finalized.
Moreover, as is evident from our review of the transcript of the May 9, 1997, hearing,
Dangberg Holdings was afforded the opportunity to be heard before the district court issued
its preliminary injunction. Based on our review of the record, we conclude that Dangberg
Holdings was afforded a reasonable opportunity to be heard in light of the unique
circumstances of this case.
Accordingly, we conclude that the district court's preliminary injunction did not violate
Dangberg Holdings' due process rights because of the probability of irreparable harm to the
Glide Estate's and State of Nevada's interests and the fact that Dangberg Holdings was
afforded a reasonable opportunity to be heard under the circumstances.
CONCLUSION
We conclude that the Glide Estate's and State of Nevada's motions for intervention were
timely within the meaning of NRS 12.130. Additionally, the district court did not abuse its
discretion in granting the Glide Estate's and State of Nevada's motions for intervention
pursuant to NRCP 24 because they both demonstrated a sufficient interest in the litigation
between Dangberg Holdings and Douglas County to warrant their intervention.
With respect to the district court's grant of temporary injunctive relief, we conclude that
the Glide Estate and the State of Nevada have made the requisite showing of reasonable
success on the merits and the probability of irreparable harm in the event that the Dangberg
Holdings-Douglas County settlement agreement is finalized. Therefore, the district court's
preliminary injunction preventing Dangberg Holdings and Douglas County from
consummating their settlement agreement did not constitute an abuse of discretion.
Additionally, we conclude that the preliminary injunction sets forth in sufficient detail the
acts to be restrained and the specific reasons for its issuance. Lastly, we conclude that the
failure to require a bond is not fatal to the injunctive order because the State was a requesting
party and that the district court's preliminary injunction did not violate Dangberg Holdings'
due process rights.
Accordingly, we deny Dangberg Holdings' petition for extraordinary relief, and affirm the
district court's issuance of a preliminary injunction.
Maupin, J., dissenting:
I agree with the majority that the motions to intervene were timely because the settlement
was not finalized. However, for the reasons stated below, I would grant extraordinary relief.
First, intervention by the state should have been refused because the October 1995 letter
from the Nevada Department of Conservation and Natural Resources, in my view, constituted
an unequivocal renunciation of any interest in acceptance of the Dangberg property as a state
park. As a matter of law, the letter had the net effect of waiving any right to oppose any
attempt by the county to negotiate a unilateral settlement.
1

Second, I would grant extraordinary relief with regard to the order allowing the Estate of
Glide to intervene. As conceded during the oral argument of this matter, the estate had no
claims to the personal property involved in the proposed settlement.
__________

1
The state relies on an affidavit prepared by the author of the letter in an attempt to create an issue of fact on
its waiver of any interest in the property. The affidavit interprets the waiver as merely conditional to the county's
use of the land as a park. The terms of the letter are inconsistent with that proposition.
ing the oral argument of this matter, the estate had no claims to the personal property
involved in the proposed settlement. Thus, any problems with other pieces of personal
property should have been resolved in a separate suit. Further, the instrument creating the
option of the state and county to acquire the property contemplates the possibility that either
the state or the county, or both, could reject the museum concept outright. Accordingly, once
the state renounced its interest, Douglas County was entitled to make whatever arrangement it
could reach with Dangberg Holdings short of or including outright refusal of the property.
The estate had no interest in the outcome of these matters.
____________
115 Nev. 148, 148 (1999) Thomas v. State
SINGLETON THOMAS, III, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28107
June 7, 1999 979 P.2d 222
Proper person appeal from an order of the district court denying appellant's
post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
Petitioner who had been convicted of trafficking in a controlled substance after entering
guilty plea filed post-conviction petition for writ of habeas corpus. The district court denied
petition. Petitioner appealed, and the supreme court held that: (1) counsel does not have
absolute duty to inform a defendant who pleads guilty of the right to pursue a direct appeal,
disapproving Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994), but (2) petitioner was
entitled to evidentiary hearing on claim that his counsel had failed to perfect an appeal after
petitioner expressed desire to appeal.
Affirmed in part, reversed in part, and remanded with instructions.
Singleton Thomas, III, Jean, in Proper Person.
1. Criminal Law.
There is no constitutional requirement that counsel must always inform a defendant who pleads guilty of
the right to pursue a direct appeal. U.S. Const. amend. 6.
2. Criminal Law.
While counsel does not have absolute duty to advise a defendant who pleads guilty of the right to appeal,
obligation does exist under certain circumstances, such as when defendant inquires about an appeal, or when
defendant may benefit from receiving the advice, such as when there exists a direct appeal claim that has a
reasonable likelihood of success; disapproving Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994). U.S.
Const. amend. 6.
3. Habeas Corpus.
Petitioner who brought post-conviction habeas corpus proceeding was entitled to evidentiary hearing on claim that his counsel was
ineffective in failing to perfect an appeal after petitioner expressed a desire to appeal. U.S. Const. amend. 6.
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas
corpus. On March 7, 1995, the district court convicted appellant, pursuant to a guilty plea, of one count of trafficking in a controlled
substance. The district court sentenced appellant to serve a term of six years in the Nevada State Prison, with parole eligibility after serving
a minimum of three years. On June 26, 1995, appellant filed an untimely appeal from the judgment of conviction, which this court
dismissed for lack of jurisdiction. Thomas v. State, Docket No. 27371 (Order Dismissing Appeal, August 25, 1995).
On August 24, 1995, appellant filed a proper person post-conviction petition for a writ of habeas corpus in the district court and a
motion for the appointment of counsel. In the petition, appellant contended, inter alia, that he was denied a direct appeal without his
consent. Specifically, appellant contended that he was not advised of his right to file a direct appeal and that his counsel failed to perfect an
appeal after appellant expressed a desire to appeal. In response to appellant's petition and motion, the state requested that the district court
appoint counsel to represent appellant, and that counsel be given an opportunity to evaluate and present direct appeal claims. The state
further argued that appellant's remaining post-conviction contentions lacked merit.
The district court denied the petition, stating that the record contained no information about the advice that the Defendant may or may
not have received regarding his right to appeal or Defendant's knowing waiver thereof. This appeal followed.
Our preliminary review of this appeal revealed that that the district court may have erred in denying the petition without
first conducting an evidentiary hearing on appellant's claim that he was not advised of his right to appeal.
trict court may have erred in denying the petition without first conducting an evidentiary
hearing on appellant's claim that he was not advised of his right to appeal. We held in Lozada
v. State, 110 Nev. 349, 871 P.2d 944 (1994), that counsel's failure to advise a criminal
defendant of the right to a direct appeal constitutes ineffective assistance of counsel.
Accordingly, we ordered the state to show cause why we should not remand this matter to the
district court to conduct an evidentiary hearing on appellant's claim.
In response, the state urges this court not to extend the rationale in Lozada to cases in
which the convictions are based on guilty pleas. Specifically, the state urges this court to
follow other courts in holding that counsel need not always advise a defendant who pleads
guilty of the right to appeal. See Laycock v. New Mexico, 880 F.2d 1184 (10th Cir. 1989);
Marrow v. United States, 772 F.2d 525 (9th Cir. 1985); Carey v. Leverette, 605 F.2d 745 (4th
Cir. 1979); and Davis v. Wainwright, 462 F.2d 1354 (5th Cir. 1972).
[Headnote 1]
We find the state's arguments persuasive. We hold that there is no constitutional
requirement that counsel must always inform a defendant who pleads guilty of the right to
pursue a direct appeal. See id.; see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.
1998); Morales v. United States, 143 F.3d 94 (2nd Cir. 1998); Castellanos v. United States,
26 F.3d 717, 719 (7th Cir. 1994); State v. Miller, 924 P.2d 690, 691 (Mont. 1996); Weathers
v. State, 459 S.E.2d 838 (S.C. 1995); but cf. United States v. Stearns, 68 F.3d 328 (9th Cir.
1995) (holding that counsel is ineffective for failing to file an appeal if the defendant did not
consent to the failure to file the appeal).
[Headnote 2]
We recognize that, under certain circumstances, counsel will have an obligation to advise
the defendant of the right to appeal. One such circumstance is when the defendant inquires
about an appeal. Another circumstance is when the situation indicates that the defendant may
benefit from receiving the advice, such as the existence of a direct appeal claim that has a
reasonable likelihood of success. See Marrow, 772 F.2d at 528-29; see generally Laycock,
880 F.2d at 1187-88; Carey, 605 F.2d at 746; Weathers, 459 S.E.2d at 839.
To the extent that this court's decision in Franklin v. State, 110 Nev. 750, 877 P.2d 1058
(1994), could be read to suggest that counsel has an absolute duty to advise a defendant who
pleads guilty of the right to appeal, we expressly disapprove of it. However, we affirm our
holding in Franklin in all other respects.
[Headnote 3]
In the instant case, while appellant contended that he was not advised of the right to
appeal, he also contended that his counsel failed to perfect an appeal after he expressed a
desire to appeal. If this latter claim is true, appellant's counsel had a duty to advise appellant
of the right to appeal and to perfect an appeal on appellant's behalf. Thus, appellant is entitled
to an evidentiary hearing on this claim. See Hargrove v. State, 100 Nev. 498, 686 P.2d 222
(1984). Accordingly, we remand this appeal to the district court to conduct an evidentiary
hearing on this claim. We have reviewed appellant's remaining contentions raised in the
petition, and we conclude that these contentions lack merit.
1
Thus, we affirm in all other
respects the district court's order denying appellant's petition.
____________
115 Nev. 151, 151 (1999) Associated Bldrs. v. So. Nev. Water Auth.
ASSOCIATED BUILDERS AND CONTRACTORS, INC., SOUTHERN NEVADA
CHAPTER, a Nevada Not-for-Profit Corporation; AMERICAN ASPHALT &
GRADING COMPANY, a Nevada Corporation; RICHARD C. KEHRES,
Individually; and JESSE J. PIPKIN, Individually, Appellants, v. SOUTHERN
NEVADA WATER AUTHORITY, a Nevada Political Subdivision, Respondent.
No. 30535
June 7, 1999 979 P.2d 224
Appeal from a judgment upholding the validity of a project labor agreement in a state
construction project. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Non-union contractor which had unsuccessfully bid on contract offered by regional water
authority, in connection with which authority had entered into project labor agreement (PLA)
with labor unions, brought action challenging validity of PLA. The district court upheld
validity of PLA, and contractor appealed. The supreme court held that: (1) PLAs are not
absolutely prohibited, and will be upheld if adopted in conformity with objectives of
competitive bidding laws;
__________

1
In the petition, appellant also contended that his guilty plea was involuntarily entered because he was
mentally incompetent and because he was not advised that he would have to serve a minimum term of three
years before being eligible for parole. Appellant further contended that his counsel was ineffective for not
requesting a competency hearing, for not advising appellant about the mandatory minimum sentence, and for not
conducting adequate investigation. These claims lack merit. See Sali v. Warden, 87 Nev. 41, 482 P.2d 287
(1971); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970); see also Kirksey v. State, 112 Nev. 980,
987-88, 923 P.2d 1102, 1107 (1996); Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984).
and will be upheld if adopted in conformity with objectives of competitive bidding laws; (2)
PLA entered by authority complied with those objectives, and was valid; and (3) PLA did not
violate right to work or freedom of association statutes.
Affirmed.
Hunterton & Associates and Thea Marie Sankiewicz, Las Vegas, for Appellants.
Stewart L. Bell, District Attorney, Clark County; Haney, Woloson & Mullins, Las Vegas;
Charles K. Hauser, General Counsel, Southern Nevada Water Authority, Las Vegas; Morgan,
Lewis & Bockius and Bradford W. Coupe and James P. Philbin, New York, New York, for
Respondent.
McCracken, Stemerman, Bowen & Holsberry, Las Vegas; Sherman, Dunn, Cohen, Leifer
& Yellig, P.C., and Victoria L. Bor, Washington, D.C., for Amici Curiae Building and
Construction Trades Department, AFL-CIO, and Building and Construction Trades Council
of Southern Nevada.
Hicks & Walt and Neil M. Alexander and James T. Winkler, Reno, for Amici Curiae the
National Association of Manufacturers and the United States Chamber of Commerce.
1. Labor Relations.
Project labor agreement (PLA) is an agreement between a construction project owner and a labor union
that a contractor must sign in order to perform work on the project. Union is designated collective bargaining
representative for all employees on project and agrees that no labor strikes or disputes will disrupt project,
and contractor must abide by certain union conditions, such as hiring through union hiring halls and
complying with union wage rules.
Appellate court reviews de novo case involving questions of law.
3. Labor Relations.
Project labor agreement (PLA) between a construction project owner and a labor union, which contractor must sign in order to
perform work on project, is not absolutely prohibited, and will be upheld if it was adopted in conformity with objectives of competitive
bidding laws. NRS 338.140, 338.147(1).
4. Public Contracts.
Purpose of statutes establishing competitive bidding requirements for public contracts is to secure competition, save public funds,
and guard against favoritism, improvidence, and corruption. NRS 338.140, 338.147(1).
5. Public Contracts.
Competitive bidding statutes governing public contracts are deemed to be for the benefit of the taxpayers and not the bidders, and
are to be construed for the public good. NRS 338.140, 338.147(1).
6. Labor Relations.
Project labor agreement (PLA) between regional water authority and local and national trade unions,
which prohibited labor disruptions or strikes, named national unions as sole and exclusive bargaining
representatives of craft employees, set uniform rates, provided access to both union and non-union
contractors, and did not require individuals to join a union in order to work on project, did not conflict with
objectives of competitive bidding laws, and was valid and enforceable. NRS 338.140, 338.147(1).
7. Labor Relations.
Agreement by an employer to hire only union employees has been declared to be unlawful objective pursuant to right to work
statute. NRS 613.250.
8. Labor Relations.
Project labor agreement (PLA) between regional water authority and local and national trade unions, which named national unions
as sole and exclusive bargaining representatives of craft employees, did not violate right to work statute, where PLA also allowed both
union and non-union contractors to bid on projects, permitted non-union contractors to use up to seven of their core employees selected
on one-to-one basis with employees referred by union, and did not require any employee to join a union. NRS 613.250.
9. Labor Relations.
Freedom of association statute provides that employers must recognize representatives chosen by their employees in a labor
dispute. NRS 614.100.
10. Labor Relations.
Project labor agreement (PLA) between regional water authority and local and national trade unions, which named national unions
as sole and exclusive bargaining representatives of craft employees, did not violate freedom of association statute, where PLA also
provided that an employee could work on project for non-union contractor without ever joining a union. NRS 614.090, 614.100.
11. Labor Relations.
Public policy behind freedom of association statute, under which employers must recognize the representatives chosen by their
employees in a labor dispute, is to protect employees from being forced to join a union. NRS 614.090, 614.100.
OPINION
Per Curiam:
This suit arises from respondent Southern Nevada Water Authority's (Water Authority)
adoption of a project labor agreement (PLA). Appellant American Asphalt bid on a Water
Authority project, noting that it would not comply with the PLA, and its bid was rejected.
Thereafter, appellants Associated Builders and Contractors and American Asphalt, along with
two individual American Asphalt employees, filed a suit in district court.
court. The district court upheld the validity of the PLA. This appeal followed.
FACTS
In 1993, the United States Supreme Court held that federal law would not pre-empt a state
authority from enforcing a PLA requirement. Building and Constr. Trades Council v.
Associated Builders and Contractors of Mass./R.I., Inc., 507 U.S. 218 (1993). Thereafter, on
April 14, 1994, former Nevada Governor Robert Miller issued an executive order directing all
state boards, authorities, and agencies to provide for the negotiation of PLAs in public works
contracts unless the board, authority, or agency makes a written determination that the
benefits of proceeding without a PLA exceed the benefits of a PLA.
[Headnote 1]
A PLA is an agreement between a construction project owner and a labor union that a
contractor must sign in order to perform work on the project. The union is designated the
collective bargaining representative for all employees on the project and agrees that no labor
strikes or disputes will disrupt the project. The contractor must abide by certain union
conditions, such as hiring through union hiring halls and complying with union wage rules.
In late 1994, the Southern Nevada Water Authority determined it was not bound by the
Executive Order. The Water Authority is a political subdivision of the State of Nevada
created to address the water needs of southern Nevada residents on a regional basis. Pursuant
to an agreement entered into by the Clark County municipal water and sewer districts and the
urban cities of Clark County, the Water Authority is empowered to acquire, develop, and
maintain water supplies for the benefit of southern Nevada consumers. Included in the
agreement is the preparation and implementation of the Capital Improvements Plan, which is
committed, over a thirty-year period, to developing a reliable and demand-responsive
municipal water system to supplement the existing system. The immediate objective is the
1999 Facilities phase, which involves work on water distribution facilities.
In 1993, the Water Authority awarded a contract to Ralph M. Parsons Company (Parsons)
for program management of the Capital Improvements Plan. The contract specifies that
Parsons is responsible for planning, design management, environment and construction
management, and start-up services.
After PLAs were brought to the Water Authority's attention in late 1994, Douglas Selby,
the Water Authority's Director of Engineering, asked Patricia Mulroy, the Water Authority's
General Manager, if she wanted to pursue using a PLA. Although the Water Authority began
to investigate the use of PLAs, Mulroy stated that she was not ready to recommend the
use of a PLA to the Water Authority board.
the Water Authority began to investigate the use of PLAs, Mulroy stated that she was not
ready to recommend the use of a PLA to the Water Authority board. In the spring of 1995,
Mulroy learned of two labor strikes against a contractor who was working on two Colorado
River Commission projects, which were later transferred to the Water Authority. The work
stoppages concerned Mulroy, although she was not sure how they affected the projects or
their time schedules.
In the fall of 1995, Mulroy decided to seek approval from the Water Authority board to use
a PLA on the Capital Improvements Plan. Water Authority officials testified that it was of
paramount importance that each phase of the Plan be completed in a timely manner to ensure
uninterrupted water delivery to southern Nevadans. The board approved Mulroy's
recommendation to begin the development of a PLA. The Water Authority began by meeting
with Parsons Constructors Inc., Parsons' construction subsidiary. Selby authorized Parsons to
begin informal discussions with union representatives. Before formal negotiations began, the
Water Authority adopted a list of goals and objectives. Parsons entered formal negotiations
with the Las Vegas building trade unions in January 1996, and a PLA was drafted and
executed by participating local and national unions. Parsons did not execute the agreement
until it was reviewed and approved by the Water Authority board.
At a March 21, 1996 meeting, the board passed a resolution approving the application of
the PLA to the 1999 Facilities phase of the Capital Improvements Plan. The PLA included
provisions that prohibited labor disruptions or strikes, named the national unions as the sole
and exclusive bargaining representatives of all craft employees, set uniform work hours and
overtime rates, provided access to the projects on the Capital Improvements Plan to both
union and non-union contractors, and permitted non-union contractors to use up to seven of
their core employees selected on a one-to-one basis with employees referred by the union.
Although the PLA requires hiring to be supervised out of the union hall, it does not require
individuals to join a union in order to work on any of the 1999 Facilities projects. In addition,
the resolution passed by the board requires periodic evaluation of the PLA by Water
Authority staff in order to determine whether the anticipated benefits of using a PLA have
been realized.
The bidding for Water Authority contract number 120-A, a mass excavation project
located on the shores of Lake Mead, took place in June 1996. On June 27, 1996, the estimator
compiling the bid for American Asphalt called the Water Authority and spoke to the Project
Engineering Manager. The estimator told the manager that American Asphalt was going to
bid on the project, but that it would not comply with the PLA if awarded the contract.
but that it would not comply with the PLA if awarded the contract. The estimator inquired
whether under those terms, the bid would be rejected. The manager replied that the bid would
likely be rejected.
Despite this discussion, American Asphalt submitted its bid for the project on June 28,
1996, along with five union contractors. The bids ranged from $1,509,314 to $1,744,000,
with the lowest bid from American Asphalt. American Asphalt was not awarded the bid and
the lawsuit resulting in this appeal followed.
[Headnote 2]
As this case involves questions of law, we review the issues de novo. SIIS v. United
Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295 (1993).
DISCUSSION
Associated Builders argues that the imposition of the PLA violates Nevada's competitive
bidding, right to work, and freedom of association statutes. We disagree.
The parties also discussed whether the Water Authority was bound by Governor Miller's
Executive Order, and, if not, whether it had jurisdiction to impose the PLA. We hold that,
regardless of whether the Water Authority was bound by the executive order, the Water
Authority has discretion to adopt a PLA as long as the PLA is not in contravention of Nevada
law, as discussed below.
Competitive Bidding Statutes
The issue of whether a PLA violates Nevada's competitive bidding statutes is one of first
impression before this court. However, three state high courtsNew Jersey, New York, and
Alaskahave addressed the issue of whether PLAs are valid under their states' competitive
bidding laws. See Laborers Local No. 942 v. Lampkin, 956 P.2d 422 (Alaska 1998); Tormee
Const. v. Mercer County Imp., 669 A.2d 1369 (N.J. 1995); George Harms Const. v. Turnpike
Auth., 644 A.2d 76 (N.J. 1994); N.Y. State Chapter v. Thruway Authority, 666 N.E.2d 185
(N.Y. 1996).
The first court to review PLAs in light of competitive bidding laws was the Supreme Court
of New Jersey. The court noted that the policy behind the competitive bidding statutes is to
guard against favoritism, improvidence, extravagance and corruption; their aim is to secure
for the public the benefits of unfettered competition. George Harms, 644 A.2d at 91
(emphasis added) (quoting Terminal Construction Corp. v. Atlantic County Sewerage
Authority, 341 A.2d 327 (N.J. 1975)). The court determined that the PLA at issue violated
New Jersey's competitive bidding statutes because the statutes provide that a public entity
cannot specify a sole source of construction services or denote a specific union affiliation.
entity cannot specify a sole source of construction services or denote a specific union
affiliation. Id. at 94. In response to the argument that the bids are open to all bidders, the court
noted that a PLA does not represent real competition. Id. Although noting that PLAs serve
important purposes on major long-term construction projects, the court concluded that the
policy of New Jersey's statutes is to foster unfettered competition and the effect of PLAs is to
lessen competition. Id. at 95.
The Supreme Court of New Jersey revisited the issue in Tormee Construction, after the
New York Court of Appeals had addressed the issue. The New Jersey court stated it is
obligated to adjudicate such bid specifications case-by-case and in this case, again, found
the PLA at issue violative of New Jersey's competitive bidding laws. Id. at 1373. The court
noted that the library project for which the PLA was adopted lacked the size and complexity
of a project for which a PLA was upheld by the New York Court of Appeals. Id. at 1372.
The New York Court of Appeals had held that:
PLAs are neither absolutely prohibited nor absolutely permitted in public construction
contracts. A PLA will be sustained for a particular project where the record supporting
the determination to enter into such an agreement establishes that the PLA was justified
by the interests underlying the competitive bidding laws.
Thruway Authority, 666 N.E.2d at 187-88. The New York court determined that its
competitive bidding statutes did not compel unfettered competition, as the New Jersey
statutes did, but instead had two central purposes: (1) to protect the public fisc by obtaining
the best work at the lowest possible price; and (2) the prevention of favoritism, improvidence,
fraud, and corruption. Id. at 190.
The Thruway Authority court analyzed two separate instances in which a PLA was used.
First, the New York court determined that the PLA used in a project to refurbish the Tappen
Zee Bridge was adopted in conformity with competitive bidding laws because: (1) the PLA
did not promote favoritism in that it applied whether the successful bidder was union or
non-union and discrimination on the basis of union membership was prohibited; and (2) the
Thruway Authority focused on the public fisc given the size and complexity of the project
and an earlier labor dispute. Id. at 191-92. Second, the New York court held that a PLA used
on a project to modernize the Roswell Park Cancer Institute was not adopted in conformity
with New York's competitive bidding statutes because there was no indication of a discussion
of cost savings prior to approval of the PLA and no indication of a concern about labor
unrest.
savings prior to approval of the PLA and no indication of a concern about labor unrest. Id. at
193.
The third state high court to address PLAs, the Supreme Court of Alaska, addressed the
issue of whether a PLA adopted on a high school construction project violated a borough's
procurement code, which states that bid specifications should be drafted to promote overall
economy and encourage maximum free and open competition. Lampkin, 956 P.2d at 432
n.13. The Alaska court noted that the purpose of the procurement code is to prevent fraud,
collusion, favoritism, and is for the benefit of taxpayers, not the bidders. The court examined
the PLA under a reasonable basis standard and held that the borough had a reasonable basis
for adopting the PLA. The project was the largest construction project undertaken by the
borough and required flexible scheduling so the school schedule would not be affected. Id. at
435.
[Headnote 3]
We hold, following the reasoning of the other state high courts which have reviewed this
issue, that PLAs are not absolutely prohibited under Nevada law. A PLA will be upheld if it
was adopted in conformity with the objectives of our competitive bidding laws. Therefore, we
examine whether the PLA at issue complied with these objectives.
NRS 338.140 provides, in part, that:
1. An agency of this state, a political subdivision, municipal corporation or district, a
public officer or a person charged with the letting of contracts for the construction,
alteration or repair of public works shall not draft or cause to be drafted specifications
for bids, in connection with the construction, alteration or repair of public works:
(a) In such a manner as to limit the bidding, directly or indirectly, to any one specific
concern.
In addition, NRS 338.147(1) provides that: [a] public body shall award a contract for a
public work to the contractor who submits the best bid.
[Headnotes 4, 5]
Further, with respect to bidding procedures, this court has held that:
The purpose of bidding is to secure competition, save public funds, and to guard against
favoritism, improvidence and corruption. Such statutes are deemed to be for the benefit
of the taxpayers and not the bidders, and are to be construed for the public good.
Gulf Oil Corp. v. Clark County, 94 Nev. 116, 118-19, 575 P.2d 1332, 1333 {197S).
1332, 1333 (1978). Therefore, we address whether the PLA at issue was adopted in
conformity with the interests underlying competitive bidding practices as enunciated in Gulf
Oil, i.e., to secure competition, save public funds, and guard against favoritism,
improvidence, and corruption.
[Headnote 6]
According to the record, providing equal access to projects to both union and non-union
contractors, at no disadvantage to non-union contractors, was an issue of concern to the Water
Authority when it was developing the PLA. The PLA allows both union and non-union
contractors to bid on projects and allows a non-union contractor to hire up to seven core
employees. In addition, employees are not required to join the representative union under the
PLA. Therefore, we conclude that the PLA maintains competition among bidders and guards
against favoritism.
Further, the record indicates that, in this case, a PLA was considered due to concerns about
potential labor disputes and a halt to the project, after the Water Authority learned of two
strikes that had occurred on the project. Although the record does not indicate specific
discussion about saving public funds,
1
labor strikes are an issue which could affect public
funds. Furthermore, testimony indicated that the Water Authority was concerned that projects
be completed on time in order to ensure an adequate water supply to southern Nevadans. The
PLA, under Article I: Purpose, states:
The Project covered by the Scope of this Agreement . . . is critical to meeting the
needs of the increasing population of Las Vegas and the surrounding metropolitan area
and to avoiding economic disruption and personal suffering caused by limited water
supplies. . . . Requirements for timely completion of the work without interruption or
delay and for at-budget completion are vital to the needs of this community.
An obvious concern in adopting the PLA was the cost of a delay if water supplies became
limited. Therefore, we conclude that the PLA was focused on saving public funds, albeit
indirectly. Based on these facts, we hold that the PLA at issue was adopted in conformity
with Nevada's competitive bidding laws.
__________

1
Statistics compiled after the PLA had been adopted indicate that the PLA saved funds and that competition
increased. Between the institution of the PLA and March 21, 1997, ninety-three bids had been submitted for
sixteen contracts with an average of 5.8 bids per contract. Six of the sixteen contracts were awarded to
non-union contractors. Prior to the institution of the PLA, sixty-six bids were received on fifteen contracts for an
average of 4.4 bids per contract. Three of the fifteen pre-PLA contracts were awarded to non-union contractors.
In addition, the awarded costs of the post-PLA projects was twenty-three percent less than anticipated originally
and the awarded costs of the pre-PLA projects was fourteen percent less than originally anticipated.
on these facts, we hold that the PLA at issue was adopted in conformity with Nevada's
competitive bidding laws.
Right to Work Statute
Nevada's right to work statute, NRS 613.250, states:
No person shall be denied the opportunity to obtain or retain employment because of
nonmembership in a labor organization, or shall the state, or any subdivision thereof or
any corporation, individual or association of any kind enter into any agreement, written
or oral, which excludes any person from employment or continuation of employment
because of nonmembership in a labor organization.
[Headnote 7]
This court has held that an agreement by an employer to hire only union employees
has been declared by the people of this state to be an unlawful objective. Bldg. Trades v.
Bonito, 71 Nev. 84, 88, 280 P.2d 295, 297 (1955). Bonito involved an agreement in which an
employer agreed to hire union employees unless the union could not supply employees within
forty-eight hours, at which time other employees could be hired. Id. at 89, 280 P.2d at 297.
This court held that the agreement violated Nevada's right to work act. Id.
[Headnote 8]
Unlike Bonito, the PLA at issue allows both union and non-union contractors to bid on
projects. Further, non-union contractors may use up to seven of their core employees selected
on a one-to-one basis with employees referred by the union. Therefore, the PLA does not
require that a project contractor hire only union employees. In addition, article IV, section 9
of the PLA provides that:
No employee covered by this agreement shall be required to join any Union or pay any
agency fees or dues as a condition of being employed, or remaining employed on the
Project.
Given that the PLA does not mandate union membership as a condition of employment on
the project and that non-union members may be hired to work on the project, we hold that the
PLA does not violate Nevada's right to work statute.
Freedom of Association Statute
[Headnote 9]
NRS 614.100, addressing employees' freedom of association, provides that employers
must recognize the representatives chosen by their employees in a labor dispute.
by their employees in a labor dispute. Further, NRS 614.090(1) declares the public policy of
the state as follows:
[I]t is necessary that the individual workman have full freedom of association,
self-organization, and designation of representatives of his own choosing to negotiate
the terms and conditions of his employment, and that he shall be free from the
interference, restraint or coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
This court addressed NRS 614.090 in Vegas Franchises v. Culinary Workers, 83 Nev. 236,
427 P.2d 959, affirmed on rehearing, 83 Nev. 422, 433 P.2d 263 (1967). In Vegas
Franchises, this court held that peaceful picketing by a labor union to force an employer to
sign a collective bargaining agreement where the employees did not wish to join the union
violated NRS 614.090. 83 Nev. at 240, 427 P.2d at 961.
[Headnotes 10, 11]
In this case, article IV, section 1 of the PLA states:
The Contractor recognizes the Union as the sole and exclusive bargaining
representative of all craft employees within their respective jurisdictions working on the
Project within the scope of this agreement.
However, as mentioned above, no employee is required to join the Union or to pay union
dues. We conclude, following the reasoning of Vegas Franchises, that the public policy
behind NRS 614.090 is to protect employees from being forced to join a union. Since the
PLA at issue provides that an employee may work on the project for a non-union contractor
without ever joining the union, we hold that the PLA does not interfere with employees'
freedom of association.
In conclusion, we hold that PLAs do not violate Nevada's competitive bidding, right to
work, or freedom of association statutes. However, PLAs must be adopted in conformity with
our statutes and the policies behind them. We hold that the PLA at issue in this case was
adopted in conformity with our statutes and, accordingly, affirm the judgment of the district
court.
____________
115 Nev. 162, 162 (1999) Palace Station Hotel & Casino v. Jones
PALACE STATION HOTEL & CASINO, INC., Appellant, v. KEITH JONES, Respondent.
No. 27129
June 15, 1999 978 P.2d 323
Appeal from a judgment entered upon a jury verdict and an award of attorney's fees and
costs. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
After jury returned verdict in personal injury action, plaintiff and defendant filed
cross-motions for statutory attorney fees and costs under offer of judgment statute. The
district court awarded attorney fees and costs to plaintiff. Defendant appealed. The supreme
court held that: (1) trial date, rather than the date offer of judgment was served, was the event
triggering ten-day period for making pretrial offer of judgment, and (2) defendant's offer of
judgment was timely.
Affirmed in part, reversed in part, and remanded.
Pyatt & Eglet, Las Vegas, for Appellant.
Carl E. Lovell, Jr., Las Vegas, for Respondent.
1. Judgment.
Under statutes providing that offer of judgment must be made more than 10 days before trial begins,
the trial date rather than the day the offer of judgment is served is the event triggering the ten-day period, and
the ten-day period is calculated by excluding the day of trial and counting backward from the day before
trial, with the day the offer is served included in the computation. NRS 17.115; NRCP 68.
2. Costs.
Where offeree is precluded under offer of judgment rule from recovering attorney fees and costs because the judgment obtained by
offeree is not more favorable than the offer of judgment, offeree is also precluded from recovering statutory attorney fees and costs as a
prevailing party. NRS 17.115(4)(b), 18.010, 18.050; NRCP 68.
OPINION
Per Curiam:
On September 18, 1992, respondent Keith Jones (Jones), while a business invitee at
appellant Palace Station Hotel & Casino, Inc. (Palace Station), sustained an injury when a
valet employee of Palace Station drove over Jones' foot. On June 17, 1993, Jones filed an
action against Palace Station. The complaint sought damages for negligence, negligent
infliction of emotional distress, attorney's fees, and costs.
sought damages for negligence, negligent infliction of emotional distress, attorney's fees, and
costs.
At a pretrial conference, jury selection was set for February 2, 1995. On January 26, 1995,
Palace Station served Jones with an offer of judgment, pursuant to NRCP 68 and NRS
17.115, in the amount of $4,500.00. Trial began on February 6, 1995, with opening
statements and the presentation of evidence.
On February 8, 1995, the jury returned a verdict in favor of Jones, awarding him $2,513.23
for medical expenses and $3,000.00 for pain and suffering. Additionally, the jury returned a
special verdict which found Jones forty-nine percent negligent and Palace Station fifty-one
percent negligent. Accordingly, Jones' award was reduced to $2,811.75.
On February 23, 1995, Palace Station filed a motion for allowance of attorney's fees and
costs, pursuant to the offer of judgment. On March 3, 1995, Jones filed an opposition to the
motion for allowance of attorney's fees and costs, and a countermotion for his own attorney's
fees and costs pursuant to NRS 18.010 and NRS 18.050. On March 22, 1995, Palace Station
filed a reply in support of its motion for attorney's fees and costs.
On March 30, 1995, the district court entered its order and judgment. The district court
found that the offer of judgment made by Palace Station was untimely because it was not
made more than ten days before the trial began. The district court also determined that Palace
Station was not the prevailing party. Accordingly, the district court ordered that Jones was
entitled to: (1) the jury verdict in the amount of $2,811.75; (2) attorney's fees in the amount of
$9,900.00; and (3) costs in the amount of $982.79.
In this appeal, Palace Station challenges the district court's award of attorney's fees and
costs to Jones and takes issue with the court's interpretation and application of Nevada's offer
of judgment rule. Palace Station does not, however, challenge the judgment with respect to
the amount of damages awarded to Jones. We conclude that the district court erred in
determining that Palace Station's offer of judgment was untimely and in denying, on this
basis, Palace Station's motion for attorney's fees and costs.
DISCUSSION
I. Offer of Judgment
Nevada's offer of judgment rule is set forth in NRCP 68 and NRS 17.115. At the time of
the underlying action, NRCP 68 provided in pertinent part: At any time more than 10 days
before the trial begins, any party may serve upon the adverse party an offer to allow
judgment to be entered for the money or property or to the effect specified in the offer,
with costs then accrued."
the trial begins, any party may serve upon the adverse party an offer to allow judgment to be
entered for the money or property or to the effect specified in the offer, with costs then
accrued.
1

NRS 17.115(1) provides that:
At any time more than 10 days before trial, either informally or at any pretrial
conference presided over by a judge of the court in which the action is pending, any
party may serve an offer in writing to allow judgment to be taken in accordance with
the terms and conditions stated at that time.
NRCP 6(a) prescribes the manner in which the ten-day time period provided under NRCP
68 and NRS 17.115 is to be computed. See NRCP 1.
In computing any period of time prescribed or allowed by these rules, . . . or by any
applicable statute, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period so computed shall
be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the
period runs until the end of the next day which is not a Saturday, a Sunday, or a
non-judicial day.
NRCP 6(a).
Whenever possible, this court will interpret a rule or statute in harmony with other rules
and statutes. Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 723 (1993).
Moreover, when 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)).
NRCP 68 requires that the offer of judgment be made more than ten days before trial. In
the present case, the trial began on Monday, February 6, 1995. The offer was made on
Thursday, January 26, 1995. The district court determined, pursuant to a strict
interpretation of NRCP 68, in conjunction with NRCP 6(a), that counting forward from the
date the offer was served rendered the offer untimely.
Palace Station contends that ten days before trial is ten days before trial, not ten days after
service of the Offer of Judgment. Therefore, Palace Station asserts, the appropriate method
for calculation requires counting backward from the trial date.
__________

1
An order repealing NRCP 68 and adopting new NRCP 68 was issued by this court on July 29, 1998. Since
the offer of judgment, in the instant case, was served in 1995, the former rule applies. Notwithstanding, the new
rule contains the same language, any time more than 10 days before trial, as the former rule. See NRCP 68(a).
culation requires counting backward from the trial date. In addition, Palace Station argues,
pursuant to NRCP 68, the date of trial is excluded from the ten-day period since the rule
speaks in terms of days before trial and, pursuant to NRCP 6(a), the day the offer was
served is included. Thus, Palace Station asserts that its offer was timely.
Jones contends that the district court properly determined that the offer of judgment, made
on January 26, 1995, was the triggering event. Therefore, Jones argues that pursuant to NRCP
6(a), January 26, 1995, is not counted in the computation; thus, counting forward from
January 27, 1995, the district court correctly found that Palace Station's offer was untimely.
Jones further contends that even if this court decides to count backward, there was still not
enough time for Jones to accept the offer.
[Headnote 1]
The threshold issue in this case is whether the trial date or the date the offer of judgment
was served is the act or event, as prescribed by NRCP 6(a), from which the designated
ten-day period of time begins to run. We conclude that because the language of NRCP 68 and
NRS 17.115 expressly provides that the offer of judgment must be made more than 10 days
before the trial begins, the trial date is the event from which the ten-day period begins to run.
Our conclusion that the trial date is the act or event which triggers the ten-day period
necessarily resolves the next issue of whether to count forward or backward. See Polk v.
Montgomery County, MD., 130 F.R.D. 40 (D. Md. 1990) (explaining that determining
whether the offer of judgment was made more than ten days before trial begins requires
counting back from trial date as provided under FRCP 6); Equitable Gen. Ins. Co. v. Helm,
623 P.2d 365 (Ariz. 1981) (application of Rule 6(a) to the notice of change of judge rule
requires counting backward instead of forward from the date set for trial). We therefore
conclude that application of NRCP 6(a) to NRCP 68 and NRS 17.115 in the present case
requires counting backward ten days, from and including February 5, 1995. Pursuant to
NRCP 6(a), the trial date itself, February 6, 1995, is excluded from the computation and the
day the offer is served is included. Accordingly, we conclude that Palace Station's offer of
judgment was timely.
II. Attorney's Fees and Costs
Under former NRCP 68, attorney's fees and costs may be allowed as follows: If the
judgment finally obtained by the offeree is not more favorable than the offer, the offeree shall
not recover costs, nor attorneys' fees, but shall pay the costs and attorneys' fees, if any be
allowed, of the party making the offer from the time of the offer."
attorneys' fees, if any be allowed, of the party making the offer from the time of the offer.
In addition, NRS 17.115(4)(b) provides that
If the party to whom the offer of judgment is made fails to obtain a more favorable
judgment, he cannot recover:
. . . .
(b) Costs or attorney's fees,
and the court shall order him to pay to the party who made the offer that party's taxable
costs incurred from the date of filing the complaint, and may order . . . reasonable
attorney's fees incurred by the party making the offer from the time of the offer.
On February 23, 1995, after the jury rendered its verdict and pursuant to the offer of
judgment, Palace Station filed a motion for allowances of attorney's fees and costs. The
district court denied Palace Station's motion on the grounds that Palace Station's offer of
judgment was untimely and Palace Station was not the prevailing party. Indeed, the jury
awarded Jones $5,513.23 in damages. However, the jury found Jones forty-nine percent
comparatively negligent and the award was reduced to $2,811.75. Palace Station correctly
contends that Jones did not obtain a more favorable judgment, since the judgment finally
obtained was less than its offer of $4,500.00. Jones contends that Palace Station is not
entitled to attorney's fees because it was not the prevailing party. Therefore, Jones insists that
as the prevailing party, the district court properly awarded him attorney's fees and costs,
pursuant to NRS 18.010 and 18.050, respectively.
[Headnote 2]
Former NRCP 68 provided that [i]f the judgment finally obtained by the offeree is not a
more favorable than the offer [of judgement], the offeree shall not recover costs, nor
attorneys' fees. Similarly, NRS 17.115(4)(b) states that [i]f the party to whom [an] offer of
judgment is made fails to obtain a more favorable judgment, he cannot recover . . . [c]osts or
attorney's fees. In the present case, the final judgment Jones obtained, $2,811.75, was not
more favorable than Palace Station's offer of $4,500.00. Further, we note that although NRS
18.010 and 18.050 grant discretion in the district court to award attorney's fees and costs,
where a party is precluded from obtaining attorney's fees and costs under NRCP 68 or NRS
17.115, the party is likewise precluded from recovering such fees under NRS 18.010 and
18.050. See Bowyer v. Taack, 107 Nev. 625, 817 P.2d 1176 (1991). Accordingly, we
conclude that not only did the district court err in awarding Jones attorney's fees and costs,
but the court erred in not considering an award to Palace Station under NRCP 6S and NRS
17.115.
115 Nev. 167, 167 (1999) Schlafer v. State
not considering an award to Palace Station under NRCP 68 and NRS 17.115.
CONCLUSION
NRCP 68 and NRS 17.115 expressly identify the trial date as the event from which the
designated period of time begins to run for computing the ten-day period therein. Application
of NRCP 6(a) to the ten-day period set forth in NRCP 68 and NRS 17.115 requires counting
backward from the day before the trial begins. Pursuant to NRCP 6(a), the date of trial is
excluded and the day of the offer is included. Accordingly, we conclude that the district court
erred in concluding that Palace Station's offer of judgment was untimely, in awarding Jones
attorney's fees and costs under NRS 18.010 and NRS 18.050, and in failing to consider an
award of attorney's fees and costs to Palace Station on the basis of NRCP 68 and NRS
17.115.
Accordingly, we reverse the district court's judgment with respect to attorney's fees and
costs, and remand for the district court to address the issue of attorney's fees and costs
pursuant to NRCP 68 and NRS 17.115.
2
The judgment is affirmed in all other respects.
____________
THOMAS EDWARD SCHLAFER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31028
June 16, 1999 979 P.2d 712
Appeal from a judgment of conviction pursuant to a jury verdict on one count of battery
with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Lee A. Gates,
Judge.
The supreme court held that: (1) prosecutors had affirmative duty to comply with trial
court's repeated orders to produce notes of jailhouse informant regarding defendant's alleged
confession, but (2) prosecution's Brady violation was not material, and thus, defendant was
not denied a fair trial.
Affirmed.
Patti & Sgro and Bruce D. Clark, Las Vegas, for Appellant.
__________

2
In exercising its discretion with respect to the allowance of fees and costs, the district court must weigh the
factors set forth in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983).
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for
Respondent.
1. Constitutional Law.
Due process requires the prosecution to disclose material evidence favorable to the defense. U.S. Const.
amend. 14.
2. Criminal Law.
Prosecution's Brady violation in failing, until morning of jailhouse informant's testimony, to provide the defense with notes made
by jailhouse informant was not material, where defense engaged in blistering cross-examination of informant by repeatedly attacking
his credibility, exploring his prior conviction, exposing his motive for testifying, and revealing that information in defendant's alleged
confession to informant was available from newspaper, and thus, defendant was not denied a fair trial. U.S. Const. amend. 14.
3. Criminal Law.
It was incumbent upon prosecution to either comply with district court's order to provide the defense with notes made by jailhouse
informant regarding defendant's alleged confession or to demonstrate to district court immediately upon discerning that its ability to
comply with the order would be problematic why it could not proffer the notes in a timely fashion.
4. Criminal Law.
Prosecutors' conduct fell far short of their professional obligations, in disregarding district court's orders to provide the defense
with jailhouse informant's notes regarding defendant's alleged confession, and failing even to inform district court that compliance with
the orders would be problematic. SCR 173(3), (4).
5. Criminal Law.
Prosecution has an affirmative duty to exercise due diligence to obtain any written or recorded statement that the district court has
ordered to be produced and to provide such material to the defense as ordered.
6. Criminal Law.
Prosecution's failure to comply with district court's order to provide the defense with a witness' written or recorded statement may
result in a presumption that the state has acted in bad faith to prejudice the criminal defendant.
Before Rose, C. J., Agosti and Becker, JJ.
OPINION
Per Curiam:
On the evening of January 13, 1994, appellant Thomas Edward Schlafer (Schlafer) stopped for a red light at the intersection of Rancho
Drive and Highway U.S. 95 in Las Vegas. A red Ford Explorer, driven by Melynda Aulicino (Aulicino), stopped for the red light in the lane
adjacent to Schlafer's. While waiting for the light to change, a verbal altercation erupted between Schlafer and Aulicino during which
Schlafer pulled a gun and shot Aulicino.
Aulicino during which Schlafer pulled a gun and shot Aulicino. Although severely wounded,
Aulicino survived the attack.
Schlafer was apprehended shortly thereafter and charged with attempted murder with the
use of a deadly weapon and battery with the use of a deadly weapon. At trial, Schlafer
advanced a theory of self-defense, claiming that during their verbal altercation, it appeared
that Aulicino was reaching for a gun. In refuting this claim, the State introduced testimonial
evidence indicating that Schlafer had fired upon Aulicino because he was angry that she had
cut him off in a traffic lane. At the conclusion of trial, the jury found Schlafer guilty of battery
with the use of a deadly weapon. Thereafter, the district court sentenced Schlafer to ten years
in the Nevada State Prison.
Schlafer now appeals, contending that his right to a fair trial was undermined by the State's
failure to timely disclose the notes of one of the State's key witnesses.
1
Although we hold
that the State had an affirmative duty to obtain and timely proffer to the defense the notes of
the witness pursuant to a lawful court order, we conclude that in this case the State's untimely
disclosure did not deprive Schlafer of a fair trial. Accordingly, for the reasons set forth below,
we affirm Schlafer's conviction.
FACTS
On the evening of January 13, 1994, Otto Krepkie (Krepkie) was working as a bouncer at
Larry's Villa nightclub in Las Vegas. At one point during the evening, as he was ejecting an
unruly patron from the premises, Krepkie heard several gunshots outside the club. While
looking outside to see what had transpired, Krepkie saw a red Ford Explorer and a smaller red
convertible stopped alongside each other at the intersection of Rancho Drive and Highway
U.S. 95. Seconds later, the red convertible accelerated away from the intersection at a high
rate of speed.
After the red convertible had departed the scene, Krepkie ran across the street to render
assistance. By the time he reached the vehicle, a white Jeep Cherokee had arrived on the
scene. A woman jumped out of the Jeep and began administering first aid to a woman in
the red Explorer who had been shot in the head but was still alive.
__________

1
Schlafer raises numerous other issues in the instant appeal. First, Schlafer contends that several of the jury
instructions were erroneous, and that the police failed to investigate other leads in the case and to preserve
allegedly exculpatory evidence. Additionally, Schlafer contends that the district court erred in permitting the
State to endorse an additional witness during trial, and that the district court erred in allowing during trial the
testimony of various witnesses, including the victim. Finally, Schlafer contends that several remarks of the
prosecutor constituted misconduct and that the evidence adduced at trial was insufficient to sustain his
conviction. However, after oral argument and careful review of the record on appeal and the briefs filed herein,
we conclude that Schlafer's additional assignments of error are without merit.
woman jumped out of the Jeep and began administering first aid to a woman in the red
Explorer who had been shot in the head but was still alive. The woman also handed Krepkie
her cellular telephone and told him to call 911. As Krepkie described the red convertible to
the police, the woman who was administering first aid became emotional and exclaimed: My
god, I think I know who did it!
When the police arrived approximately four minutes later, the victim was identified as
Aulicino, and the woman who had been rendering first aid identified herself as Wendy Muir
(Muir). Muir indicated that she and her boyfriendappellant Schlaferworked together as
paramedics for Mercy Ambulance and that the description of the red convertible provided by
Krepkie appeared to match the description of Schlafer's vehicle. Muir explained that she and
Schlafer had been at a nearby bar and that Schlafer, who had consumed several beers, seemed
depressed when Muir declined Schlafer's invitation to spend the night together. Muir then
provided the police with Schlafer's name and address.
After arriving at the address that Muir had provided, Las Vegas Metropolitan Police
Department (LVMPD) officers made a telephone call to the residence and instructed Schlafer
to exit the house. Upon exiting, Schlafer was arrested and taken into custody.
Schlafer was charged with one count of attempted murder with the use of a deadly weapon
and one count of battery with the use of a deadly weapon, to which he pleaded not guilty. A
jury trial commenced on May 23, 1994, but on June 2, 1994, the district court declared a
mistrial. A second jury trial commenced on June 5, 1995.
While incarcerated in the Clark County Detention Center awaiting trial, Schlafer shared a
cell with Neil Wallach (Wallach). During their jailhouse conversations, Schlafer allegedly
told Wallach that he had shot Aulicino out of anger because she had veered into his traffic
lane thereby cutting him off. Wallach had purportedly taken notes of his conversations with
Schlafer, and during Schlafer's first trial, Wallach testified on behalf of the State that Schlafer
had admitted to shooting Aulicino out of anger instead of self-defense.
Prior to the start of the second trial, Schlafer requested the State's file on Wallach.
Accordingly, the district court ordered the State to proffer Wallach's notes to the defense by
March 30, 1995. However, by April 28, 1995, the State still had not proffered Wallach's notes
to the defense. During a hearing on June 5, 1995, the State explained that it did not have
Wallach's notes in its possession but that the State would contact Wallach to see if he still had
the notes. The district court again ordered the State to proffer Wallach's notes to the defense
by the following day.
The next day, June 6, 1995, the State failed to provide Wallach's notes to the defense as
ordered by the district court. In fact, the State did not proffer the notes to the defense until
June 7, 1995, the day Wallach testified at trial, claiming that it did not obtain the notes until
the evening prior to Wallach's testimony.
During trial, the State called numerous witnesses. Aulicino testified that on the evening of
January 13, 1994, she departed her boyfriend's home at approximately 11:30 p.m. The last
thing Aulicino remembered about the evening was turning northbound on Rancho Drive en
route to her home. Aulicino had no recollection of the shooting or of the events leading up to
or immediately following the incident. Additionally, Aulicino testified that while her
boyfriend had given her a handgun as a gift, she did not carry the weapon in her vehicle.
The State also called Mike Worthen (Worthen), Schlafer's roommate. Worthen testified
that on the evening of the shooting, Schlafer arrived home at approximately 1:30 a.m. as
Worthen was watching television in the living room. Worthen testified that Schlafer went
straight to his bedroom, and after about ten minutes, emerged in his bathrobe. In
conversation, Schlafer stated to Worthen that he had been involved in a traffic altercation
because some bitch had cut him off. Worthen testified that shortly thereafter the police
called and ordered him and Schlafer out of the house.
The State also called Wallach, Schlafer's former cellmate at the Clark County Jail.
Wallach testified that Schlafer had told him that on the evening of January 13, 1994, a
woman in a red Ford Explorer began tailgating him as he drove home on Rancho Drive.
Angered, Schlafer took his foot off the gas and swerved to cut the woman off as she tried to
pass him.
Schlafer indicated that eventually the woman was able to pass him, and in so doing, she
flipped her middle finger at him. The two vehicles came to a stop at a red light, whereupon
the woman powered down her right-side window, flipped her middle finger at him again, and
then began to yell at him. At this point, Schlafer told Wallach that he grabbed his .380 caliber
handgun and fired five or six shots at the woman because she pissed him off. Schlafer
further added that his only mistake was that he did not use a bigger gun.
During cross-examination, defense counsel repeatedly attacked Wallach's credibility and
explored in great detail the circumstances of his prior conviction. Additionally, defense
counsel revealed that in exchange for his testimony, Wallach had asked the State to draft a
letter to the parole board indicating his favorable testimony against Schlafer. Finally, defense
counsel attempted to impeach the veracity of Wallach's account of Schlafer's jailhouse
admission by indicating that all of the details of Wallach's testimony could have been
gleaned from newspaper accounts of the shooting.
admission by indicating that all of the details of Wallach's testimony could have been gleaned
from newspaper accounts of the shooting.
Schlafer also took the stand and advanced a theory of self-defense. Schlafer testified that
after he and Muir had parted at the bar, he got into his red Chrysler LeBaron convertible and
began making the drive home on Rancho Drive. While driving on Rancho Drive, a vehicle
began to tailgate him, so he reduced his speed to allow the vehicle to pass. The other vehicle,
which he now recognized as a red Ford Explorer, proceeded into the right lane and began
matching his speed. At one point, the Explorer accelerated its rate of speed and swerved
sharply in front of Schlafer's vehicle.
Schlafer testified that at this point, he became fearful of the occupants of the Explorer. At
the intersection of Rancho Drive and U.S. 95, Schlafer had to stop for a red light adjacent to
and on the right side of the Explorer. In glancing over at the Explorer, Schlafer noticed that
the driver, a woman, was screaming profanities at him and making obscene gestures with her
middle finger.
Schlafer testified that at some point during the encounter, the woman's hand dropped
below his field of vision and then came back up, pointing at him. At this point, Schlafer
grabbed his handgun, fired several shots in the direction of the driver, and then fled the scene.
After Schlafer was arrested at his home, he informed the police that he had acted in
self-defense.
Schlafer also called Stephanie Howe (Howe) as a witness. Howe was Aulicino's neighbor
and alleged cocaine supplier. Howe testified that she and Aulicino had used cocaine together
in the past, and that on the night prior to the shooting, Aulicino had stopped by her house and
appeared to be high on cocaine. Howe testified that while she did not see Aulicino ingest
cocaine on that evening, Aulicino had cocaine in her possession. Additionally, Craig Voss,
M.D., who had been qualified as an expert in the field of pathology and urine test screening,
testified that Aulicino's urine sample taken at the hospital on the night that she was shot tested
positive for cocaine.
At the conclusion of trial, the jury found Schlafer not guilty of attempted murder, but
guilty of battery with the use of a deadly weapon. Accordingly, on August 7, 1995, the district
court sentenced Schlafer to ten years in the Nevada State Prison with 375 days credit for time
served. Additionally, the district court assessed a $10,000.00 fine.
Schlafer now appeals.
DISCUSSION
Schlafer contends that the State's failure to timely proffer Wallach's notes of Schlafer's
alleged jailhouse admission necessitates a new trial because the State's delay
undermined his ability to effectively cross-examine Wallach.
Wallach's notes of Schlafer's alleged jailhouse admission necessitates a new trial because the
State's delay undermined his ability to effectively cross-examine Wallach. Although the State
failed to timely comply with the district court's order directing it to proffer Wallach's notes to
the defense, we conclude that the State's untimely admission in this instance did not deprive
Schlafer of a fair trial.
[Headnote 1]
Due process requires the State to disclose material evidence favorable to the defense.
Brady v. Maryland, 373 U.S. 83, 87 (1963). In Nevada, a Brady violation occurring after the
defense has made a specific request for evidence is material if there exists a reasonable
possibility that the claimed evidence would have affected the judgment of the trier of fact, and
thus the outcome of the trial.' Jimenez v. State, 112 Nev. 610, 619, 918 P.2d 687, 692
(1996) (quoting Roberts v. State, 110 Nev. 1121, 1132, 881 P.2d 1, 8 (1994)).
In the instant case, Schlafer made a specific request for Wallach's notes, and the State was
ordered to provide them to the defense on several occasions, the first of which was
approximately three months prior to the commencement of Schlafer's second trial. The State
failed to comply with the district court's order to provide Wallach's notes at each juncture,
and finally proffered Wallach's notes to the defense on the morning of Wallach's testimony at
trial on June 7, 1995.
[Headnote 2]
Although the quality of defense counsel's cross-examination of Wallach may have been
enhanced by the State's timely admission of Wallach's notes, and even assuming that the
notes constituted Brady material, we conclude that there is no reasonable possibility that the
outcome of Schlafer's trial would have been affected if the State had timely proffered
Wallach's notes as ordered.
As is evident from the record on appeal, defense counsel engaged in a blistering
cross-examination of Wallach by repeatedly attacking his credibility, exploring in detail his
prior conviction, exposing, as a motive for his testimony, his hope for favorable treatment
from the parole board, and undermining the veracity of his account of Schlafer's jailhouse
admission by revealing that most of Wallach's information was readily available in newspaper
accounts of the shooting. Based on the scope and breadth of defense counsel's
cross-examination of Wallach, we conclude that even if the State had made a timely
admission of Wallach's notes, there is no reasonable possibility that the result of Schlafer's
trial would have been different.
Notwithstanding our conclusion that the State's untimely admission of Wallach's notes
did not deprive Schlafer of a fair trial, we nonetheless conclude that the State failed to
exercise due diligence in obtaining Wallach's notes as ordered by the district court.
admission of Wallach's notes did not deprive Schlafer of a fair trial, we nonetheless conclude
that the State failed to exercise due diligence in obtaining Wallach's notes as ordered by the
district court. Although the State asserts that its conduct was proper pursuant to NRS 50.125
2
because it made Wallach's notes available to the defense on the day that Wallach testified at
trial, our inquiry does not end there.
[Headnotes 3, 4]
The fact remains that the State repeatedly violated the district court's lawful discovery
orders.
3
The State's assertion that it could not produce Wallach's notes sooner because it did
not obtain them until the evening prior to Wallach's testimony begs the question as to whether
the State had an affirmative duty to comply with repeated court orders directing it to acquire
and proffer Wallach's notes. Irrespective of any heightened ethical obligation, the district
court repeatedly ordered the State in this case to proffer Wallach's notes to the defense. It was
incumbent upon the State to either comply with the district court's orders, or
demonstrateimmediately upon discerning that its ability to comply with the district court's
order would be problematicwhy it could not proffer Wallach's notes in a timely fashion. By
disregarding the district court's orders, and by failing to even inform the district court that
compliance with its orders to produce Wallach's notes would be problematic, the State's
conduct in this matter fell far short of its professional obligations.
[Headnotes 5, 6]
We take as true the State's assertion that it did not have Wallach's notes in its possession
until the night prior to Wallach's testimony, and thus we assume that the State's failure to
timely proffer Wallach's notes was the result of negligence and not bad faith.
__________

2
In relevant part, NRS 50.125 provides:
1. If a witness uses a writing to refresh his memory, either before or while testifying, an adverse party
is entitled:
(a) To have it produced at the hearing;
(b) To inspect it;
(c) To cross-examine the witness thereon; and
(d) To introduce in evidence those portions which relate to the testimony of the witness for the
purpose of affecting his credibility.
. . . .
3. If a writing is not produced or delivered pursuant to order under this section, the judge shall make
any order which justice requires, except that in criminal cases when the state elects not to comply, the
order shall be one:
(a) Striking the testimony; or
(b) If the judge in his discretion determines that the interests of justice so require, declaring a mistrial.

3
We take this opportunity to remind prosecutors that the willful failure to comply with discovery obligations
and district court orders pertaining thereto may constitute professional misconduct. See SCR 173(3)-(4).
Wallach's notes in its possession until the night prior to Wallach's testimony, and thus we
assume that the State's failure to timely proffer Wallach's notes was the result of negligence
and not bad faith. However, we will not countenance similar conduct in future cases.
Accordingly, we hold that the State must exercise due diligence to obtain any written or
recorded statement that the district court has ordered to be produced and to provide such
material to the defense as ordered. In future cases, the State's failure to comply with similar
court orders may result in a presumption that the State has acted in bad faith to prejudice a
criminal defendant.
CONCLUSION
We conclude that the State's untimely admission of Wallach's notes did not deprive
Schlafer of a fair trial. In future cases the State must exercise due diligence by timely
complying with court orders directing it to obtain and proffer to the defense any written or
recorded statement of a witness that the State intends to call during its case-in-chief.
____________
115 Nev. 175, 175 (1999) Sheriff v. Dhadda
SHERIFF, WASHOE COUNTY, Appellant, v. PARMJIT KAUR DHADDA, Respondent.
No. 32564
July 22, 1999 980 P.2d 1062
Appeal from district court orders granting respondent's pretrial petition for a writ of habeas
corpus and discharging respondent on an indictment filed in district court and a complaint
filed in justice's court. Second Judicial District Court, Washoe County; Brent T. Adams,
Judge.
Defendant was charged with first-degree kidnapping and first-degree murder of her
four-month-old daughter, and she filed pretrial petition for writ of habeas corpus. The district
court granted petition and discharged defendant on both indictment and pending criminal
complaint in justice court. State appealed. The supreme court held that: (1) statements made
by defendant to police could not be considered in determining existence of corpus delicti; (2)
note written by defendant before daughter's death could be considered; (3) state presented
sufficient independent evidence to establish corpus delicti for murder; and (4) neither the
indictment nor order granting writ of habeas corpus automatically extinguished pending
criminal complaint.
[En banc reconsideration denied September 27, 1999]
Appellant.
Martin Wiener, Reno, for Respondent.
1. Homicide.
To establish the corpus delicti in a murder case, the state must show (1) the fact of death, and (2) that
death occurred through the criminal agency of another.
2. Habeas Corpus.
In habeas corpus proceedings brought by one indicted in a crime, the court can only inquire into whether there exists any
substantial evidence which, if true, would support a verdict of conviction.
3. Habeas Corpus.
In habeas corpus proceedings brought by one indicted in a crime, the court may not resolve a substantial conflict in the evidence
because that is the exclusive function of the jury.
4. Criminal Law.
In assessing whether there is sufficient independent evidence of the corpus delicti, a reviewing court should assume the truth of the
state's evidence and all reasonable inferences from it in a light favorable to the state.
5. Criminal Law.
Probable cause to bind a defendant over for trial may be based on slight, even marginal, evidence because it does not involve a
determination of guilt or innocence of an accused.
6. Criminal Law.
The same standard that applies to probable cause for guilt, so as to bind defendant over for trial, applies to proof of the corpus
delicti.
7. Criminal Law.
Statements made by murder defendant to police could not be considered in determining whether her daughter's death was
intentionally caused, for purposes of determining existence of corpus delicti; however, note written by defendant before daughter's
death could be considered.
8. Criminal Law.
The corpus delicti must be demonstrated by evidence independent of the confessions or admissions of the defendant.
9. Homicide.
State presented sufficient independent evidence that death of defendant's four-month-old daughter was intentionally caused, so as
to establish corpus delicti supporting first-degree murder indictment. Defendant had left her husband a note stating that she and
daughter were leaving this house and this world forever, police thereafter responded to call that child had been lost in river,
daughter's body was located in river about 140 yards from where defendant was found with baby blanket, and child was fully clothed.
There was sufficient evidence to sustain indictment against defendant for first-degree kidnapping and first-degree murder of her
four-month-old daughter, considering the evidence of corpus delicti in conjunction with defendant's statements at river
where daughter's body was found.
conjunction with defendant's statements at river where daughter's body was found.
11. Habeas Corpus; Indictment and Information.
Neither the return of indictment against defendant, nor trial court's order granting writ of habeas corpus as to indictment,
automatically extinguished pending criminal complaint against defendant in justice court charging the same offenses.
Two indictments may be outstanding at the same time for the same offense as long as jeopardy has not attached.
OPINION
Per Curiam:
Respondent Parmjit Kaur Dhadda was accused of first-degree kidnapping and first-degree murder in connection with the death of her
four-month-old daughter, Amrit Kaur Dhadda, who drowned in the Truckee River. The district court granted respondent's pretrial petition
for a writ of habeas corpus, concluding that the state failed to present sufficient evidence before the grand jury, independent of respondent's
admissions and confessions, to establish the corpus delicti of the charged offenses. The district court then discharged respondent on both
the indictment and a pending criminal complaint charging the same offenses. The state has appealed those orders.
FACTS
Rupinderpal Dhadda (Rupinderpal) testified before the grand jury as follows. Parmjit Kaur Dhadda (Parmjit) came to the United States
from India in 1995 as part of an arranged marriage to Rupinderpal. The couple's only child, Amrit, was born on January 25, 1997.
Rupinderpal was shown a picture, which he identified as Parmjit and Amrit before she died. On May 12, 1997, Rupinderpal left for school
at approximately 7:00 or 7:15 a.m. Parmjit and Amrit were asleep when Rupinderpal left the house. Amrit was in good health at the time.
Rupinderpal returned home at 10:00 a.m. and no one was in the home that he shared with Amrit, Parmjit and his parents. There was a note
written in Punjabi, Parmjit's native language, on top of the dresser. The note read: Me and Amrit are leaving this house and this world
forever. Yours, Parmjit and Amrit. Rupinderpal thought that Parmjit was trying to scare him. Rupinderpal called family members and
went to Parmjit's place of employment, local stores and the bus station looking for Parmjit. Eventually he called the police and reported his
wife and daughter missing.
David Bernardy, a detective sergeant with the City of Reno Police Department, testified as
follows. At approximately 1:00 p.m. on May 12, 1997, Bernardy responded to a report that a
baby had been lost in the Truckee River. Bernardy encountered Parmjit at the river. Parmjit
claimed to be the lost child's mother and said that she had entered the river with the child in
order to wash her and that the current had swept the child away. Parmjit directed Bernardy to
the area along the riverbank where she lost the child. Bernardy observed a towel and blanket
in the area. In about twenty to thirty minutes searchers found the body of a child, who
appeared to be three months old, approximately 140 yards down river from the location
Parmjit had indicated. Bernardy identified the child as the same as one in a photograph shown
to him at the grand jury. The child was wearing a diaper and a sleeper when found.
Mohammed Rafaqat, a detective with the Reno Police Department, testified as follows.
Rafaqat interviewed Parmjit at the police station on the day the body was found,
communicating in the Punjabi dialect. He advised her that she was not in custody and that she
was free to leave if she wished. She indicated that she wished to proceed with the interview.
Parmjit first told Rafaqat that she was feeding Amrit some milk while sitting on the
riverbank. When some of the milk dried around Amrit's mouth, she waded into the river with
Amrit to wipe the milk off her face. While in the water a strong current swept Amrit away.
Later, Parmjit admitted writing the note and told Rafaqat that she went to the river to commit
suicide and take Amrit with her. She said she stepped into the river with Amrit with the intent
that they both be swept away by the current, but she changed her mind as she prepared to step
into the rapid current. She bent down to scoop up some water to wash Amrit's face, but a
strong current came and knocked Amrit out of her hand and knocked her into the water. She
said she was in the water for half an hour and then spent several hours trying to find her
daughter along the river without seeking help. Rafaqat observed that Parmjit's outer clothing
was not wet, but her money and a handkerchief in her brassiere appeared damp.
Parmjit also told Rafaqat that she and Rupinderpal had a fight the previous day and that
Rupinderpal threatened to divorce her and said that he was going to consult an attorney.
Parmjit was upset over this possibility and did not want to return to India or continue living
anymore. The reason she planned to take her daughter with her if she killed herself was that
she did not want her daughter to grow up listening to insults from family members about her
mother.
Both Rupinderpal and Rafaqat were asked about ritual bathing in the river in India.
in the river in India. Both witnesses were aware of the practice, but neither was familiar with
the details. Rafaqat testified that he was aware of ritual washings in rivers as part of the
Hindu religion, but he believed that such washings were usually a family event.
Rupinderpal testified that Parmjit is a very religious member of the Sikh religion. He further
testified that he and Parmjit always bathed Amrit at home in the bathtub and that Amrit was
never clothed when she was bathed. He also testified that he never knew Parmjit to wash
Amrit in the river or elsewhere outside of the home.
At the conclusion of the hearing, the grand jury returned a true bill on both the charges of
first degree kidnapping and first degree murder. On the same day, the district court stayed any
further proceedings on a criminal complaint charging the same offenses, which had been filed
before the state obtained the indictment.
Parmjit moved to suppress the statements she made to the police. The district court found
that the questioning of Parmjit at the police station was a custodial interrogation and that
Parmjit had not made a knowing and voluntary waiver of her Fifth Amendment rights. The
district court suppressed all statements Parmjit made to the police at the police station,
including all statements made before and after the Miranda warnings were given.
Subsequently, Parmjit filed a pretrial petition for a writ of habeas corpus, alleging that the
legally competent and admissible evidence presented to the grand jury was insufficient to
charge her with the offenses set forth in the indictment. The district court conducted a hearing
on the petition and subsequently granted it. The court found that insufficient evidence,
independent of the statements of the defendant, was presented to the grand jury to establish
the death of Amrit Kaur Dhadda by criminal agency. The district court entered an order
discharging and releasing Parmjit from custody.
Thereafter, a question arose as to whether the district court's order granting the petition for
habeas corpus precluded Parmjit's continued detention on the still-pending criminal complaint
in justice's court. The court conducted a hearing on the matter and filed an amended order
discharging and releasing Parmjit from custody on the indictment and on the criminal
complaint. The state appeals from the order granting the habeas petition and the amended
order discharging Parmjit on the indictment and the complaint.
DISCUSSION
Grand Jury Indictment
[Headnote 1]
The grand jury's duty is to determine whether there is probable cause to believe
ble cause to believe (1) that a crime has been committed, and (2) that the defendant
committed the crime. NRS 172.155(1). The determination that a crime has been committed is
known as the corpus delicti. In order to establish the corpus delicti in a murder case, the state
must show (1) the fact of death, and (2) that death occurred through the criminal agency of
another. Sheriff v. Middleton, 112 Nev. 956, 961, 921 P.2d 282, 285 (1996). The fact of
death in this case is conceded. Amrit died by drowning. Since Amrit was three months old at
the time of her death and she drowned in the Truckee River, it is therefore clear that her death
was not of her own doing. Thus, the question presented is whether there was evidence that the
death was caused by someone else so as to constitute a crime.
[Headnotes 26]
In habeas corpus proceedings brought by one indicted in a crime, the court can only
inquire into whether there exists any substantial evidence which, if true, would support a
verdict of conviction. Ex Parte Stearns, 68 Nev. 155, 159, 227 P.2d 971, 973 (1951),
overruled in part on other grounds by Shelby v. District Court, 82 Nev. 213, 418 P.2d 132
(1966). The court may not resolve a substantial conflict in the evidence because that is the
exclusive function of the jury. Id. In assessing whether there is sufficient independent
evidence of the corpus delicti, a reviewing court should assume the truth of the state's
evidence and all reasonable inferences from it in a light most favorable to the state. See State
v. Aten, 927 P.2d 210, 219 (Wash. 1996). Probable cause to bind a defendant over for trial
may be based on slight, even marginal, evidence because it does not involve a determination
of guilt or innocence of an accused. Middleton, 112 Nev. at 961, 920 P.2d at 286. In Graves
v. Sheriff, 88 Nev. 436, 438, 498 P.2d 1324, 1326 (1972), this court stated:
Probable cause requires that the evidence be weighed toward guilt, though there may be
room for doubt. The facts must be such as would lead a person of ordinary caution and
prudence to believe and conscientiously entertain a strong suspicion.
The same standard that applies to probable cause for guilt applies to proof of the corpus
delicti. Middleton, 112 Nev. at 961-62, 920 P.2d at 285.
[Headnotes 7, 8]
The first question to be determined is what evidence may be considered in determining
whether the corpus delicti has been shown. It has long been established that the corpus delicti
must be demonstrated by evidence independent of the confessions or admissions of the
defendant.
admissions of the defendant. Id. at 962, 920 P.2d at 286; In Re Kelly, 28 Nev. 491, 498, 83 P.
223, 225 (1905). This rule protects against an accused's conviction being based solely upon
an uncorroborated confession. Domingues v. State, 112 Nev. 683, 692, 917 P.2d 1364, 1371
(1996). The rule arose from judicial distrust of confessions and admissions generally,
combined with the recognition that juries are likely to accept such statements uncritically.
City of Bremerton v. Corbett, 723 P.2d 1135, 1139 (Wash. 1986), limited on other grounds
by Aten, 927 P.2d at 220-21. The distrust of confessions stems from the possibility that they
may have been misreported or misconstrued, elicited by force or coercion, based on mistaken
perception of the facts or law, or falsely given by a mentally disturbed individual. Id. Thus,
none of the statements made by Parmjit to the police may be considered in determining
whether Amrit's death was intentionally caused, even those statements which were not
suppressed by the district court.
1

However, the note Parmjit left before Amrit's death may be considered. The rationale for
excluding post-crime admissions does not apply to pre-crime admissions. As the United
States Supreme Court explained in Warszower v. United States, 312 U.S. 342, 347 (1941):
__________

1
The federal courts no longer require independent proof of the corpus delicti alone. In Opper v. United States,
348 U.S. 84, 93 (1954), the United States Supreme Court resolved a conflict in the circuits, holding that the
better rule is that there must be substantial independent evidence which would tend to establish the
trustworthiness of the defendant's statements; corroborative evidence need not be sufficient, independent of the
defendant's statements, to establish the corpus delicti. The court in U.S. v. Kerley, 838 F.2d 932, 939 (7th Cir.
1988), stated the rationale for abandoning the corpus delicti rule as follows:
The rule is a vestige of a time when brutal methods were commonly used to extract confessions,
sometimes to crimes that had not been committed.
Although there is a growing trend toward abandoning the corpus delicti rule, Nevada still maintains it.
Commentators have generally agreed that the corpus delicti rule is no longer needed since the development of
other confession law doctrines, especially Fifth Amendment protections. See C. McCormick, Evidence 145
(4th ed. 1992); J. Terry Schwartz, California's Corpus Delicti Rule: The Case for Review and Clarification, 20
UCLA L. Rev. 1055 (1973) (rule is ineffective in preventing convictions on false testimony and pragmatic
scrutiny indicates it should be abolished); Julian S. Millstein, Note, Confession Corroboration in New York: A
Replacement for the Corpus Delicti Rule, 46 Fordham L. Rev. 1205, 1235 (1978) (rule is duplicative of other
confession doctrines); Developments in the LawConfessions, 79 Harv. L. Rev. 938, 1084 (1966) (serious
consideration should be given to elimination of the corpus delicti requirement).
The rule requiring corroboration of confessions protects the administration of the
criminal law against errors in convictions based upon untrue confessions alone. Where
the statement was made prior to the crime this danger does not exist. Therefore we are
of the view that such admissions do not need to be corroborated. They contain none of
the inherent weaknesses of confessions or admissions after the fact.
(Footnote omitted.)
Based upon where both Parmjit and Amrit were found, the inference can certainly be made
that Parmjit took Amrit to the river. However, her intent in doing so is the issue to be
determined. The note Rupinderpal found is virtually the only independent evidence of
Parmjit's intent to harm Amrit. The district court found that there was insufficient evidence,
independent of the statements of the defendant, to establish the death of Amrit by criminal
agency. The district judge did not indicate whether he considered the note Parmjit wrote
before Amrit's death in making that finding. We hold that the note Parmjit wrote before
Amrit's death may be considered in determining the existence of the corpus delicti. Therefore,
we must analyze the evidence considering the note.
[Headnote 9]
In this case, the evidence supporting the indictment includes the following: When
Rupinderpal left for school on the morning of May 12, 1997, Parmjit and Amrit were at home
and Amrit was in good health. Upon returning from school several hours later, Rupinderpal
found that Parmjit and Amrit were not at home, but that Parmjit had left a note in her native
language informing Rupinderpal that she and Amrit were leaving this house and this world
forever. A fair interpretation of the note is that Parmjit intended to kill herself and Amrit.
Several hours after Rupinderpal returned home, police responded to a call that a child had
been lost in the Truckee River. The river was running in a very swift and swollen condition.
Police found Parmjit at the Truckee River. She was upset. The body of a
three-to-four-month-old child was located in the river approximately 140 yards from where
Parmjit was found with a baby blanket. The child was fully clothed. There were no signs of
traumatic injury, and the appearance of the child's body was consistent with a drowning.
Applying the applicable standards, we conclude that this evidence would lead a person of
ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that
Amrit's death was intentionally caused. We therefore conclude that the state presented
sufficient independent evidence of the corpus delicti to support the indictment.
[Headnote 10]
Considering the evidence of the corpus delicti in conjunction with Parmjit's statements at
the river, we find that there was sufficient evidence to sustain the indictment for first degree
murder against Parmjit, even without the statements she made at the police station.
We also conclude that the evidence discussed above is sufficient evidence to support a
reasonable inference that the crime of first-degree kidnapping was committed. The state
demonstrated that there is probable cause to believe that Parmjit took Amrit to the river for
the purpose of killing her or inflicting substantial bodily harm upon her. NRS 200.310(1).
Dismissal of the Criminal Complaint
[Headnote 11]
As previously mentioned, the state initially proceeded against Parmjit by means of a
criminal complaint filed in justice's court. However, before the scheduled preliminary
hearing, the state presented the case to a grand jury and obtained the indictment. When the
district court accepted the indictment, it stayed any further proceedings on the criminal
complaint pending final determination of the indictment. After granting the pretrial habeas
corpus petition and discharging Parmjit on the indictment, the district court determined that
the indictment superseded and supplanted the state's prerogative to proceed by way of
preliminary examination. The court reasoned that, a necessary consequence of the Court's
granting of the Petition for Habeas Corpus Relief in this case is discharge of the petitioner not
only from the custody under the case number of the District Court action, but also the
Justice's Court action, because the Court concludes that the Indictment in this case superseded
and supplanted the State's prerogative to proceed by way of preliminary examination. We
disagree with this reasoning.
[Headnote 12]
While ordinarily the state dismisses a criminal complaint when an indictment is returned,
such a dismissal is not automatic upon return of an indictment. There is no authority for the
proposition that an indictment obtained while a criminal complaint is pending automatically
replaces the complaint. On the contrary, this court has consistently held that there is no
jurisdictional defect in dual proceedings against an accused consisting of a grand jury
indictment for the same offense which has been previously charged in a pending complaint or
information. Turpin v. Sheriff, 87 Nev. 236, 238, 484 P.2d 1083, 1084-85 (1971). Two
indictments may be outstanding at the same time for the same offense as long as jeopardy
has not attached.
jeopardy has not attached. United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir.
1983). Although maintaining dual proceedings against an accused could be an abuse of the
state's power, we conclude that no such abuse is indicated here. Neither the indictment nor the
order granting the writ of habeas corpus as to the indictment automatically extinguished the
pending criminal complaint.
CONCLUSION
We reverse the district court's order granting the pretrial petition for a writ of habeas
corpus and the district court's amended order discharging respondent on the indictment and
the criminal complaint, and we remand this matter to the district court for further
proceedings.
2

_____________
115 Nev. 184, 184 (1999) Noonan v. State
ERIC PAUL NOONAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30021
July 22, 1999 980 P.2d 637
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of second
degree felony murder. Second Judicial District Court, Washoe County; Steven P. Elliott,
Judge.
Defendant was convicted of second degree felony murder following a jury trial in the
district court and he appealed. The supreme court held that: (1) the information, which
charged intentional murder based on allegations that defendant caused an infant to suffer
death by hypothermia, permitted instruction and conviction under a felony murder theory
premised on an underlying felony of intentional endangerment; (2) the underlying felony was
sufficiently dangerous in nature to support conviction under the felony murder rule; and (3)
Nevada's reasonable doubt instruction did not deny defendant due process.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender,
Washoe County, for Appellant.
Attorney, Daniel Greco and Terrence P. McCarthy, Deputy District Attorneys, Washoe
County, for Respondent.
__________

2
On November 3, 1998, respondent filed a motion for permission to supplement her response to the docketing
statement. We deny the motion as moot.
McCarthy, Deputy District Attorneys, Washoe County, for Respondent.
1. Homicide.
Murder information charging an intentional killing based on allegations that defendant submerged an
infant in cold water or placed her in a freezer or other cold environment, resulting in death by hypothermia,
permitted instruction and conviction under a felony murder theory premised on an underlying felony of
willful endangerment or neglect resulting in substantial bodily harm, particularly considering that the state
had no reason to specifically allege the underlying felony until defendant gave trial testimony that differed
significantly from his pretrial statements and that defendant demanded and received an instruction on
involuntary manslaughter. NRS 200.010, 200.030, 200.070.
2. Homicide.
Conviction for felony child neglect premised on evidence that defendant left a sixteen-month-old child alone in bathtub for 25 to
30 minutes was inherently dangerous such that defendant should have foreseen the possibility of death or injury resulting. Accordingly,
the felony supported a conviction for second degree murder.
3. Constitutional Law; Criminal Law.
Nevada's reasonable doubt instruction did not violate defendant's federal and state due process rights. U.S. Const. amend. 14; NRS
175.211(1).
OPINION
Per Curiam:
Appellant Eric Paul Noonan was found guilty of second degree murder by a jury and
sentenced to a prison term of twenty-five years, with parole eligibility after a minimum of ten
years, for the murder of Taylor Savannah Buttacavole. Additionally, Noonan was ordered to
pay restitution in the amount of $9,291.98. Noonan appeals the judgment of conviction.
FACTS
Noonan was responsible for watching several children, including sixteen-month-old
Taylor, at his residence in Reno. On the morning of February 26, 1996, Taylor's father,
Donald Buttacavole, dropped Taylor off at Noonan's home at approximately 6:30 a.m., and
she appeared in good health. At approximately 11:50 a.m., Kenneth Fairer, a dispatcher at
REMSA paramedics, received a call from Noonan's address requesting an ambulance.
REMSA dispatched a team to Noonan's home, responding to a call of a child in full arrest.
A team of firefighters, including Patrick Luna and Brian Spell, was the first to arrive on the
scene. They found Taylor lying on the living room floor wearing a jumper with a tee shirt
underneath.
floor wearing a jumper with a tee shirt underneath. Luna testified that when he touched
Taylor to obtain a pulse, he was shocked by the intense coldness of her body. Her breathing
was labored and her pupils were fixed and dilated. Taylor's skin tone looked normal, she
appeared dry, and there were no signs of physical abuse on her body.
Noonan explained to Spell that he had given Taylor a bottle of milk approximately one
hour before the firefighters and paramedics arrived and then had put her down for a nap.
Approximately thirty to forty-five minutes later he checked on her, and she was not breathing.
Noonan attempted CPR and then called 9-1-1. Noonan told a paramedic that he fed Taylor a
couple of bottles of milk, put her down for a nap, and ten minutes later found her in her crib,
blue and ice cold. He then called 9-1-1.
When the paramedics, Mark Gabites and Mike Crabbe, arrived they found Taylor taking
labored breaths and noticed that she was very pale. Gabites and Crabbe touched her and she
felt extremely cold. Taylor's heart rate was very low, and Gabites described her eyes as
glazed. Gabites attempted to intubate her, but was unable to because her jaw was locked. The
paramedics observed no signs of abuse or trauma.
When police officer Daniel Hunter arrived, Noonan identified himself as Dylan Clunie,
Noonan's half-brother. Noonan told Hunter that he found Taylor in her crib, blue and not
breathing, and called 9-1-1.
The paramedics took Taylor to Washoe Medical Center. A registered nurse at the medical
center noted that Taylor felt extremely cold, her breathing was labored, and she was
unresponsive to external stimuli. Her temperature was eighty-one degrees, and she was
pronounced dead at 2:05 p.m. The cause of death was certified as hypothermia.
Detective John Douglas of the Reno Police Department was sent to the medical center to
investigate Taylor's death. Noonan again identified himself as Dylan Clunie, and produced
Dylan's driver's license. Noonan agreed to accompany Detective Douglas to the Reno Police
Department. While there he recounted that he gave Taylor a bath around 9:00 a.m., and then
two bottles between 10:30 and 10:45 a.m. He checked her at 11:00 and 11:15 a.m., and she
was fine both times. Noonan stated that he went to a nearby school to pick up another child
he watched, and was gone a maximum of two minutes. Upon his return he began preparing
lunch, and checked Taylor in her playpen. He noticed that she looked blue, and called for an
ambulance. After recounting the incidents prior to Taylor's death, Noonan told police his real
name.
Noonan's trial testimony differed from what he had told the firemen, paramedics, and
police officers on the day of Taylor's death. He admitted lying to police and stated that he did
so because he panicked. He testified that he gave Taylor a bath at approximately 10:45 or
10:55 a.m., periodically checking on her while he prepared lunch. While Taylor was in the
bathtub, Noonan left to pick-up another child at the child's school. Noonan left for the school
at approximately 11:15 a.m. The testimony concerning the time it took to get from Noonan's
home to the school varied from five minutes, to five minutes forty-five seconds, to eight
minutes. Noonan waited at the school for at least five minutes, before starting for home. The
snow was deep and he had to carry the child part of the way, but they eventually raced each
other back home.
When Noonan arrived at his home he heard the water running and found Taylor in the
bathtub, floating on her back. He grabbed her, turned the water off, felt that she was ice cold,
and called 9-1-1. He attempted CPR on Taylor, and turned up the heater.
The district court instructed the jury on first and second degree murder, second degree
felony murder, and involuntary manslaughter. The jury returned a guilty verdict of second
degree murder. The district court sentenced Noonan to a term of twenty-five years with
eligibility for parole beginning when a minimum of ten years had been served. This timely
appeal followed.
DISCUSSION
[Headnote 1]
On appeal Noonan contends that the district court erroneously instructed the jury on a
theory of second degree felony murder because the information filed against him is devoid of
a felony murder theory. We conclude that the instruction was properly given.
The information filed against Noonan alleged, in pertinent part, that Eric Paul Noonan
committed the crime of:
MURDER, a violation of NRS 200.010 and NRS 200.030, a felony, in the manner
following:
That the said defendant on the 26th day of February . . . 1996 . . . did willfully,
unlawfully and with malice aforethought, deliberation, and premeditation kill TAYLOR
SAVANNAH BUTTACAVOLE, a human being, to wit, said defendant submerged the
infant in cold water, or placed the child in a freezer or other cold environment, thereby
causing the infant's body temperature to lower rapidly, resulting in death by
hypothermia; or
That the said defendant did willfully, unlawfully, and with malice aforethought, kill
TAYLOR SAVANNAH BUTTACAVOLE, by means of child abuse, to wit, said
defendant submerged the infant in cold water, or placed the child in a freezer or
other cold environment, thereby causing the infant's body temperature to lower
rapidly, resulting in death by hypothermia . . . .
CAVOLE, by means of child abuse, to wit, said defendant submerged the infant in cold
water, or placed the child in a freezer or other cold environment, thereby causing the
infant's body temperature to lower rapidly, resulting in death by hypothermia . . . .
Noonan maintains that the following instruction was improper because the information
failed to provide him with notice that he was charged with felony murder:
If the killing is the result of the commission of a Felony that is inherently dangerous to
human life, then the killing is second degree murder.
Willful endangerment or Neglect of a Child Resulting in Substantial Bodily Harm is a
Felony.
The elements of this Felony offense are that:
(1) The Defendant did willfully, and unlawfully;
(2) While responsible for the safety or welfare of a child under the age of 18
years,
(3) Permit or allow that child to suffer unjustifiable physical pain or mental
suffering as a result of neglect, or to be placed in a situation where the child may suffer
physical pain or mental suffering as a result of neglect.
In Alford v. State, 111 Nev. 1409, 1412, 906 P.2d 714, 715 (1995), this court held that the
State is required to charge felony murder and its attendant facts in an indictment or
information if it chooses to pursue a murder conviction on the basis of the felony murder rule.
However, that case is inapplicable to this appeal. In this case, the State had no reason to
specifically allege the underlying felony of willful endangerment or neglect resulting in
substantial bodily harm until Noonan testified at trial. Even so, the information alleges the
basic facts supporting the second degree murder conviction based on willful endangerment or
neglect. Noonan had notice of the factual allegations against him and could defend himself
against those allegations. The only difference in the ultimate charge from what the
information charged is that the information charged intentional killing and the ultimate
conviction was for intentional endangerment.
Noonan's initial statements did not indicate intentional endangerment. The district court
found that Noonan told police and emergency personnel that he gave Taylor a warm bath,
dried her off, dressed her in warm clothing, placed her in her playpen in a room with a
temperature of seventy to seventy-five degrees, and found her later extremely cold and not
breathing. However, at trial Noonan testified that he left Taylor alone in the bathtub for
twenty-five to thirty minutes, and when he returned, the water was running and Taylor was
floating on her back, extremely cold.
was running and Taylor was floating on her back, extremely cold. This new testimony clearly
supported intentional endangerment.
Furthermore, Noonan insisted on, and received, an instruction on involuntary
manslaughter. The statutory definition of involuntary manslaughter in NRS 200.070 includes
the language but where the involuntary killing occurs in the commission of an unlawful act,
which, in its consequences, naturally tends to destroy the life of a human being, . . . the
offense is murder. This is precisely the crime of which Noonan was convicted. We conclude
that the felony murder instruction was proper.
[Headnote 2]
An additional issue is whether felony child neglect can support a conviction for second
degree felony murder. The leading Nevada case on the issue of second degree felony murder
is Sheriff v. Morris, 99 Nev. 109, 118, 659 P.2d 852, 859 (1983), where this court stated:
[W]e hold that a felony which would support the application of this second degree
felony murder rule, would have to be one which is inherently dangerous when viewed
in the abstract. There can be no deterrent value in a second degree felony murder rule
unless the felony is inherently dangerous since it is necessary that a potential felon
foresees the possibility of death or injury resulting from the commission of the felony.
(citation omitted).
We conclude that leaving a sixteen-month-old child alone in a bathtub for twenty-five to
thirty minutes is inherently dangerous and Noonan should have foreseen the possibility of
death or injury resulting. Similarly, we perceive an immediate and direct causal relationship
between Noonan's acts and Taylor's demise. Thus, we hold that under Morris the second
degree felony murder conviction was supported by the evidence of Noonan's actions.
[Headnote 3]
Noonan's final argument is that Nevada's reasonable doubt instruction, codified in NRS
175.211(1), violates the due process clauses of both the federal and state constitutions. This
court has affirmed the constitutionality of the instruction on several prior occasions. See
Chambers v. State, 113 Nev. 974, 944 P.2d 805 (1997); Evans v. State, 112 Nev. 1172, 926
P.2d 265 (1996); Quillen v. State, 112 Nev. 1369, 929 P.2d 893 (1996); Bollinger v. State,
111 Nev. 1110, 901 P.2d 671 (1995). Further, in Ramirez v. Hatcher, 136 F.3d 1209 (9th
Cir.), cert. denied, 525 U.S. 967 (1998), the United States Court of Appeals for the Ninth
Circuit upheld the constitutionality of NRS 175.211(1).
Therefore, we conclude that Noonan's argument that Nevada's reasonable doubt instruction
violates his federal and state due process rights lacks merit.
In conclusion, we hold that the jury instructions in this case were correct. Accordingly, we
affirm Noonan's judgment of conviction.
____________
115 Nev. 190, 190 (1999) Perelman v. State
MOSHE PERELMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31096
August 20, 1999 981 P.2d 1199
Appeal from a judgment of conviction of three counts of filing false claims for insurance
benefits. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
Defendant was convicted of filing false claims for insurance benefits following a jury trial
in the district court and he appealed. The supreme court held that: (1) the crime of insurance
fraud is a countinuing offense; (2) the complaint's failure to allege facts establishing when
defendant's continuous course of conduct ended did not render it fatally defective; and (3) the
existence of a factual dispute about when the insurer victim knew that a crime had been
committed did not mandate dismissal on limitations grounds.
Affirmed.
Theodore J. Manos & Associates and Thomas C. Michaelides, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Gregory R. Hojnowski and John E.
Cunningham, III, Deputy Attorneys General, Carson City; Stewart L. Bell, District Attorney,
1. Insurance.
Overall intent of the insurance fraud statute is to address the filing of a false claim through the use of
fraud, misrepresentations, or false statements. NRS 686A.291.
2. Insurance.
Only one crime of insurance fraud has been committed when multiple false statements are made in support of one claim. NRS
686A.291.
3. Criminal Law.
Crime of insurance fraud is a continuing offense as to which the three-year statute of limitations does not begin to run until the
continuous commitment of the offense is completed. NRS 171.085(2), 686A.291.
4. Insurance.
Complaint charging three counts of the offense of filing false claims for insurance benefits did not have to
allege facts establishing when defendant's continuous course of conduct ended for the complaint to provide
adequate notice to defendant, particularly considering that the complaint did state which claims were at issue
and gave defendant adequate notice of a potential limitation defense, as evidenced by his moving to dismiss
on that ground. NRS 171.085(2), 171.102, 173.075, 686A.291.
5. Insurance.
Neither the continuing nature of the crime of insurance fraud nor the applicable statute of limitations is an element of the crime,
and thus neither has to be specifically pleaded in the complaint. NRS 171.085(2), 171.102, 173.075, 686A.291.
6. Criminal Law.
Existence of a factual dispute about when the insurer victim knew, or with reasonable diligence should have known, that a crime
of filing false claims for insurance benefits had been committed did not as a matter of law mandate dismissal of a complaint charging
the crime based on defendant's limitations defense. NRS 171.085(2), 686A.291.
7. Criminal Law.
Although there may have been questions for the fact fimder to resolve on a limitations defense in an insurance fraud prosecution,
defendant's failure to request an instruction or to submit any factual issues to the jury in support of the defense waived the issue. NRS
171.085(2), 686A.291.
OPINION
1

Per Curiam:
This is an appeal from a judgment of conviction entered pursuant to a jury verdict on three
counts of filing false claims for insurance benefits. The district court sentenced appellant
Moshe Perelman (Perelman) to a three-year term of imprisonment on each count.
2

Perelman contends that the district court erred in finding that the crime of filing a false
claim for benefits, i.e., insurance fraud, is a continuing offense under NRS 686A.291. The
statute of limitations for insurance fraud is three years. See NRS 171.085(2). Perelman argues
that the December 4, 1996 complaint in this matter was filed beyond the statutory period.
__________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request of counsel
for the state, we have determined that our decision should be issued in a published opinion. Accordingly, we
hereby issue this opinion in place of our order dismissing this appeal filed on June 10, 1999.

2
The district court also ordered Perelman to pay a $25.00 administrative fee, a $500.00 attorney fee, and
$7,544.38 in restitution to American Banker's Insurance Company.
ter was filed beyond the statutory period. He contends that NRS 686A.291 provides that each
false statement is a separate and distinct crime complete when the false statement is made.
Accordingly, since all of the statements relied upon by the State were made prior to
December 3, 1993, he asserts that the statute of limitations on all three claims had run by the
time the complaint was filed.
[Headnotes 1, 2]
Although NRS 686A.291 makes the filing of a false statement a crime, the overall intent
of the statute is to address the filing of a false claim through the use of fraud,
misrepresentations, or false statements. Thus, when multiple false statements are made in
support of one claim, only one crime has been committed.
[Headnote 3]
We conclude that insurance fraud is a continuing offense and that the statute of limitations
does not begin to run until the continuous commitment of the offense is completed. Much like
the continuing crime of welfare fraud, misrepresentations and false statements filed in support
of insurance benefits are the result of a single, criminal intent and a continuous course of
conduct.
3
We find that the statutory language of NRS 686A.291, taken as a whole, treats
insurance fraud as a continuing offense. Accordingly, the district court did not err in finding
that the crime of insurance fraud is a continuing offense in its denial of Perelman's motion to
dismiss these charges as a matter of law.
[Headnotes 4, 5]
Perelman also contends that the complaint did not allege any facts establishing when the
continuous course of conduct ended and was thus fatally defective regardless of whether the
crimes were continuous. We conclude that the allegations in the complaint complied with
NRS 171.102 and NRS 173.075 and contained the essential facts sufficient to put Perelman
on written notice of the offenses charged. Neither the continuing nature of insurance fraud
nor the statute of limitations is an element of the crime, and thus neither has to be
specifically pleaded in the complaint.
__________

3
See State v. Martin, 616 P.2d 193 (Haw. 1980) (crime of welfare fraud is continuing offense as plain
language of statute indicated legislative intent and all statements of fact filed in support of continued eligibility
for welfare benefits were identical, representing that Martin was unmarried, unemployed, and not receiving
social security benefits); John v. State, 291 N.W.2d 502 (Wis. 1980) (welfare fraud and failure to notify
authorities of changed circumstances was continuing offense because there was no finality until receipt of aid
was discontinued or change of circumstances was reported); State v. Jones, 775 P.2d 183 (Kan. Ct. App. 1989)
(welfare fraud was a continuing offense as it involved the wrongful taking of benefits on a monthly basis over a
period of time); State v. Carrier, 677 P.2d 768 (Wash. Ct. App. 1984) (crime of welfare fraud is continuing
offense as successive takings are the result of a single, continuing, criminal intent).
insurance fraud nor the statute of limitations is an element of the crime, and thus neither has
to be specifically pleaded in the complaint. Accordingly, we conclude that the criminal
complaint was not defective and the district court did not err in refusing to dismiss it. See
Sanders v. Sheriff, 85 Nev. 179, 451 P.2d 718 (1969) (holding that complaint is intended
solely to put defendant on written notice of charge he must defend).
4

[Headnote 6]
Finally, Perelman argues that the last date when the victim knew or should have known
that the claim was fraudulent was December 3, 1993. This is the date when Perelman made
statements in his divorce case which contradicted the statements made in the insurance
claims. While a factual dispute does exist with respect to when the victim knew, or with
reasonable diligence should have known, that a crime had been committed, there was
sufficient evidence to support a prima facie case and dismissal of the complaint was not
mandated as a matter of law.
[Headnote 7]
The factual issues could have been submitted for the jury to consider; however, Perelman
failed to request an instruction to this effect and did not submit any factual issues to the jury
in support of his statute of limitations defense. Thus, although there may have been questions
for the fact finder to resolve on the statute of limitations defense, Perelman's failure to request
such an instruction waived the issue.
Having considered appellant's contentions and concluding that they lack merit, we affirm
appellant's judgment of conviction.
5

__________

4
The complaint did state which claims were at issue and gave Perelman adequate notice of a potential statute
of limitations defense as evidenced by his motion to dismiss.

5
Perelman also asserted that NRS 171.095, the secret manner exception to the three-year statute of
limitations prescribed in NRS 171.085, did not apply to the crime of insurance fraud. However, the district court
did not reach the merits of this issue below, and we therefore decline to address it for the first time on appeal.
Additionally, we have considered all proper person documents filed or received in this matter, and we
conclude that they are without merit.
____________
115 Nev. 194, 194 (1999) Ochoa v. State
ARTURO TORRES OCHOA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31819
August 20, 1999 981 P.2d 1201
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
second-degree murder with the use of a deadly weapon and attempted murder with the use of
a deadly weapon. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure,
Judge.
Defendant was convicted in the district court of second degree murder with the use of a
deadly weapon and attempted murder with the use of a deadly weapon. Defendant appealed.
The supreme court, Becker, J., held that: (1) doctrine of transferred intent is applicable to all
crimes where an unintended victim is harmed as a result of the specific intent to harm an
intended victim, whether or not the intended victim is injured; (2) intent underlying
defendant's fatal shooting of intended victim thus transferred to his accidental shooting of
bystander, and supported attempted murder conviction; and (3) evidence of defendant's prior
drug transactions with defendant, and separate witness who testified, was properly admitted.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Miller and Willard N. Ewing, Deputy
and James Tufteland and Eric G. Jorgenson, Chief Deputy District Attorneys, Clark County,
for Respondent.
1. Criminal Law.
A person cannot be held criminally responsible for an offense unless the State proves beyond a
reasonable doubt, all of the essential elements of that offense.
2. Homicide.
Intent to kill a human being is an element of attempted murder.
3. Homicide.
Doctrine of transferred intent is a theory of imputed liability, which was developed to address situations where a defendant,
intending to kill A, misses A and instead accidentally kills B. Under doctrine, intent to kill A is being transferred or imputed to victim
B, in order to avoid the specific intent requirement and thus hold the defendant accountable for the consequences of his behavior when
he injures an unintended victim.
115 Nev. 194, 195 (1999) Ochoa v. State
4. Homicide.
Doctrine of transferred intent allowed defendant's intent in fatally shooting intended victim to be
transferred to bystander who was accidentally shot as unintended victim, and thus to support attempted
murder conviction arising from shooting of bystander. Fact that intended victim was killed did not prevent
intent from transferring to unintended victim.
5. Criminal Law; Homicide.
Doctrine of transferred intent is not limited to bad aim cases, in which perpetrator misses intended victim and accidentally kills
unintended victim, and applies in any case where there is intent to commit a criminal act, and the only difference between the actual
result and the contemplated result is the nature of the personal or property injuries sustained.
6. Criminal Law.
Doctrine of transferred intent is applicable to all crimes where an unintended victim is harmed as a result of the specific intent to
harm an intended victim, whether or not the intended victim is injured.
7. Criminal Law.
Doctrine of transferred intent is based upon a legal fiction that imposes criminal liability upon a person based upon his or her
participation in a factual scenario which creates harm to persons or property. Direct proof of a particular element of a crime is not
required, because the requisite element is imputed from the conduct of the defendant.
8. Criminal Law.
Testimony regarding defendant's prior drug transactions with murder victim, and witness who had previously purchased cocaine
from victim after unsuccessfully attempting to buy cocaine from defendant, was admissible as evidence of prior crimes in murder
prosecution. Transactions were so interconnected to long-standing dispute between defendant and victim, which culminated in murder,
that witness could not have accurately described nature of dispute without referring to the transactions. NRS 48.035(3).
9. Criminal Law.
Evidence regarding defendant's prior drug transactions with murder victim, and witness who had previously purchased cocaine
from victim after unsuccessfully attempting to buy cocaine from defendant, was relevant to show motive for murder, which arose from
long-standing dispute between defendant and victim, and rebut assertion of self-defense, and thus was admissible in murder
prosecution. NRS 48.045(2).
10. Criminal Law.
Claimed misconduct of prosecutor in allegedly violating court order forbidding reference to murder defendant's drug transactions
which were unrelated to murder charge did not warrant dismissal, where unsolicited testimony at issue was insubstantial and at most
only slightly prejudicial.
OPINION
By the Court, Becker, J.:
Appellant Arturo Torres Ochoa (Ochoa) shot and killed Luis Ortiz {Ortiz).
115 Nev. 194, 196 (1999) Ochoa v. State
Ortiz (Ortiz). One of the shots intended for Ortiz struck a bystander, Ricky Smith (Smith).
Ochoa appeals his conviction contending that the trial court erred by: (1) applying the
doctrine of transferred intent to the charge of attempted murder involving Smith; (2) allowing
testimony regarding Ochoa's prior drug transactions with Keith Harriman (Harriman) and
Ortiz; and (3) denying Ochoa's motion to dismiss for prosecutorial misconduct. We disagree
and affirm the judgment.
FACTS
Shortly before the shootings in this case, Smith went to an apartment building in Las
Vegas to purchase cocaine. Ortiz was sitting in front of the building holding a baseball bat.
Smith approached Ortiz, negotiated a price for some cocaine, and Smith paid Ortiz for the
cocaine.
1
After Smith paid Ortiz, Ortiz stood up and went to talk to Ochoa who was seated
in a nearby vehicle. Smith described the conversation as hostile. Ochoa fired several shots
at Ortiz. Ortiz was killed and Smith was wounded.
Ochoa testified that he shot Ortiz in self-defense. Ochoa stated that Ortiz, accompanied by
an unidentified man, opened the car door with a baseball bat in his hand, ordered Ochoa to
give the car to Ortiz and raised the bat in a menacing manner. Ochoa claimed he thought
Ortiz was going to hit him with the bat so he fired several shots at Ortiz. Ochoa stated he
never intended to shoot Smith and that Smith was wounded by accident.
The prosecution argued that the shooting was part of an ongoing dispute between Ochoa
and Ortiz over a car, as well as interference by Ortiz with Ochoa's drug transactions. In
support of this theory, the state offered evidence demonstrating Ochoa's involvement with the
drug trade. Following an evidentiary hearing, the district court ruled that only prior
transactions involving Harriman and Ortiz would be admissible.
Harriman testified that he purchased cocaine from Ochoa on several occasions. Harriman
owned a used car lot and part of the consideration for his cocaine purchases was the use of a
car from the lot or a discount on the price of a car. The day before the shooting, Harriman
tried to buy cocaine from Ochoa. Ochoa had no cocaine. Ortiz was present during this
transaction. After Ochoa could not satisfy Harriman's needs, Ortiz sold cocaine to Harriman.
Harriman paid for the cocaine by agreeing to provide a car to Ortiz. Harriman stated that after
his deal with Ortiz, Ochoa and Ortiz argued about a car, though Harriman was unable to hear
the details of the dispute.
__________

1
Smith testified that he gave money to Ortiz and that Ortiz then walked over to Ochoa's car. Smith did not
indicate he received cocaine from Ortiz.
115 Nev. 194, 197 (1999) Ochoa v. State
In support of his theory of self-defense, Ochoa solicited the testimony of Gerald Peters
(Peters) who stated that Ortiz had previously threatened Peters with a baseball bat. To rebut
this testimony, during cross-examination, the prosecution questioned Peters about an incident
between Peters and Ochoa in which Ochoa threatened Peters with a gun. The following
colloquy took place:
Q [State]: Why didn't youwhat was your statement to the police as far as why he
[Ochoa] pulled a gun on you?
A: It's to do with him selling rocks.
Q: This is the defendant right?
A: The defendant.
Defense counsel objected, and the objection was sustained. Counsel moved for a dismissal on
the grounds that the question violated the district court's ruling regarding Ochoa's previous
drug transactions. The district court determined that the question was not intended to solicit
information about Ochoa's drug activities and denied the motion to dismiss. The district court
indicated it would give a cautionary instruction on the issue; however, defense counsel chose
not to request such an instruction.
DISCUSSION
I. Doctrine of Transferred Intent
[Headnotes 1, 2]
As a general proposition, a person cannot be held criminally responsible for an offense
unless the state proves, beyond a reasonable doubt, all of the essential elements of that
offense. Intent to kill a human being is an element of attempted murder. Ochoa contends he
cannot be convicted of attempting to murder Smith since there is no evidence that he ever
intended to kill Smith. The state argues that there was no need to present evidence of any
intent to kill Smith because Ochoa's intent to kill Ortiz can be attributed to Smith applying the
doctrine of transferred intent.
[Headnote 3]
The doctrine of transferred intent is a theory of imputed liability. It was developed to
address situations where a defendant, intending to kill A, misses A and instead accidentally
kills B. Without the doctrine, the individual responsible for B's death could not be charged
with murder because there was never an intent to kill B.
Rather than allow an individual who intended to commit murder to escape full
responsibility for his conduct simply because he killed the wrong person, the doctrine of
transferred intent was established. The intent to kill A would be transferred or imputed to
victim B.
115 Nev. 194, 198 (1999) Ochoa v. State
to victim B. The doctrine of transferred intent was created to avoid the specific intent
requirement and thus hold the defendant accountable for the consequences of his behavior
when he injures an unintended victim. State v. Wilson, 863 P.2d 116, 121 (Wash. Ct. App.
1993), rev'd in part on other grounds, 883 P.2d 320 (Wash. 1994).
[Headnote 4]
Ochoa stresses that this is not the traditional bad aim case where the perpetrator misses
the intended victim and accidentally hits an unintended victim. Here Ochoa intended to kill,
and did kill, Ortiz. Ochoa argues that since the intended victim was killed, the intent to kill
cannot be transferred to the unintended victim, Smith.
[Headnotes 5, 6]
While imputed liability through transferred intent is most often seen in bad aim
situations, the rationale of the doctrine need not be limited to such cases. Theoretically, the
doctrine applies in any case where there is intent to commit a criminal act and the only
difference between the actual result and the contemplated result is the nature of the personal
or property injuries sustained. See P.H. Robinson, Imputed Criminal Liability, 93 Yale L.J.
609 (1984).
[Headnote 7]
The doctrine of transferred intent is based upon a legal fiction that imposes criminal
liability upon a person based upon his or her participation in a factual scenario which creates
harm to persons or property. Direct proof of a particular element of a crime is not required
because the requisite element is imputed from the conduct of the defendant. There are
numerous applications of this concept in criminal jurisprudence. The felony-murder and
co-conspirator culpability rules are prime examples of imputed liability because the conduct
of one actor in a crime is imputed to all the participants of that crime. Id. at 611.
Professor Robinson identifies four justifications for imputing an absent element of a
criminal offense. One of these justifications, known as the equivalency theory, is the most
commonly applied rationale for the transferred intent doctrine. Under this theory, if the actual
harm or crime is the equivalent of the harm or crime intended to be committed, then liability
for the intended harm should be imputed to the actual harm. Thus the culpability actually
present should be equivalent to the culpability required by the charged offense. Id. at 648.
The rationale supporting the equivalency theory applies to the instant case. When Ochoa
fired shots at Ortiz, the actual culpability {i.e., intent to kill) is equivalent to the culpability
of the charged crime, attempted murder {i.e., an intent to kill that fails to succeed).
115 Nev. 194, 199 (1999) Ochoa v. State
bility (i.e., intent to kill) is equivalent to the culpability of the charged crime, attempted
murder (i.e., an intent to kill that fails to succeed). The actual result (two people harmed)
differs from the contemplated result (one person harmed.) However, the culpable mental state
(intent to kill) in the contemplated result remains unchanged in the actual result. The identity
or number of persons injured is not relevant to the equivalency rationale.
The fact that the equivalency theory of imputed liability can be used in this case to support
the application of the transferred intent doctrine does not answer the question of whether, as a
matter of public policy, the doctrine should be applied to any given situation. Other courts
have addressed the issue of expanding the doctrine of transferred intent to cases where both
the intended and unintended victims have been injured or killed.
Ochoa urges the court to adopt the rationale of People v. Birreuta, 208 Cal. Rptr. 635 (Ct.
App. 1989). Birreuta held that the doctrine of transferred intent would not be applied where
the intended victim was actually killed and a bystander was also accidentally killed. Since the
perpetrator will be punished for the actual killing, and his intent to kill was directed at only
one person, the perpetrator should not also suffer punishment for that single intent as a result
of an accidental injury to third persons.
In contrast to Birreuta, the Connecticut Supreme Court held that the doctrine applies
regardless of whether or not the intended victim was injured. In State v. Hinton, 630 A.2d
593, 603 (Conn. 1993), the court noted that:
When a defendant contemplates or designs the death of another, the purpose of
deterrence is better served by holding that defendant responsible for the knowing and
purposeful murder of the unintended as well as the intended victim. Hence, we reject
defendant's argument that the successful killing of the intended victim prevents the
transfer of that intent to an unintended victim.
See also State v. Warlock, 569 A.2d 1314 (N.J. 1990). We agree with the Hinton rationale.
Although Birreuta and Hinton involved charges of murder, there is no reason not to apply
the doctrine of transferred intent to other situations where the criminal charges relating to the
intended and unintended victims differ but the specific intent required for the crimes remains
the same. For example, in State v. Stringfield, 608 P.2d 1041 (Kan. Ct. App. 1980), the
Kansas Court of Appeals applied the doctrine in a case of aggravated battery. In Stringfield,
the defendant fatally shot the intended victim while at the same time wounding a child in the
vicinity of the shooting. Because the facts showed the defendant only had the intent to injure
the intended victim, he was convicted of voluntary manslaughter as to the intended victim
and aggravated battery as to the unintended victim.
115 Nev. 194, 200 (1999) Ochoa v. State
intended victim, he was convicted of voluntary manslaughter as to the intended victim and
aggravated battery
2
as to the unintended victim. The crimes differed, but the intent to injure
was the same.
Accordingly, the doctrine of transferred intent is applicable to all crimes where an
unintended victim is harmed as a result of the specific intent to harm an intended victim
whether or not the intended victim is injured. Since there was sufficient evidence that Ochoa
intended to kill Ortiz, that intent may be transferred to the unintended victim, Smith. As
Smith did not die, the appropriate charge was attempted murder.
Having held that the transferred intent doctrine is applicable, we conclude, after viewing
the evidence in the light most favorable to the prosecution, that a rational trier of fact could
have found the essential elements of attempted murder beyond a reasonable doubt. See
Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994).
II. Harriman Drug Transactions
[Headnote 8]
Ochoa contends that the trial court erred in allowing testimony regarding Ochoa's prior
drug transactions with Harriman and Ortiz. Ochoa asserts that this evidence was irrelevant,
that its probative value was substantially outweighed by the danger of unfair prejudice, and
that it was improperly admitted under NRS 48.035(3).
3
We conclude that the testimony at
issue was admissible under NRS 48.035(3). The drug transactions at issue were so
interconnected to the dispute between Ochoa and Ortiz that Harriman could not have
accurately described the nature of that dispute without referring to the drug transactions. See
Powell v. State, 108 Nev. 700, 707-08, 838 P.2d 921, 926 (1992), vacated on other grounds,
511 U.S. 79 (1994).
[Headnote 9]
The evidence of drug transactions is also admissible under NRS 48.045(2).
4
Ochoa
argued the shooting was self-defense. It is clear from the record that the incidents are
relevant to establish animosity between Ochoa and Ortiz and go to show motive and rebut
the assertion of self-defense.
__________

2
In Kansas, aggravated battery, like attempted murder, is a specific intent crime.

3
NRS 48.035(3) provides:
Evidence of another act or crime which is so closely related to an act in controversy or a crime
charged that an ordinary witness cannot describe the act in controversy or the crime charged without
referring to the other act or crime shall not be excluded, but at the request of an interested party, a
cautionary instruction shall be given explaining the reason for its admission.

4
NRS 48.045(2) provides:
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
115 Nev. 194, 201 (1999) Ochoa v. State
clear from the record that the incidents are relevant to establish animosity between Ochoa and
Ortiz and go to show motive and rebut the assertion of self-defense. The record also supports
a finding that the acts were proven by clear and convincing evidence and that the probative
value of the acts was not substantially outweighed by the danger of unfair prejudice.
Accordingly, this evidence was admissible under NRS 48.045(2). See Tinch v. State, 113
Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).
III. Motion to Dismiss
[Headnote 10]
Ochoa asserts that the district court erred in denying his motion to dismiss for
prosecutorial misconduct based upon an alleged violation of a court order forbidding
reference to Ochoa's non-Harriman drug transactions. We conclude Ochoa's contention lacks
merit. The unsolicited testimony at issue was insubstantial and, at most, only slightly
prejudicial. See Sheriff v. Fullerton, 112 Nev. 1084, 1098, 924 P.2d. 702, 711 (1996)
(holding that a motion to dismiss for prosecutorial misconduct can only be granted where the
misconduct is clearly substantial and prejudicial).
Accordingly, we affirm the district court's judgment.
Maupin and Agosti, JJ., concur.
____________
115 Nev. 201, 201 (1999) Mauer v. EICON
RUSSELL MAUER, Appellant, v. EMPLOYERS INSURANCE COMPANY OF NEVADA,
and BRYANT UNIVERSAL ROOFERS, Respondents.
No. 32301
August 26, 1999 983 P.2d 411
Appeal from a district court order denying judicial review and affirming an administrative
determination that appellant is not entitled to workers' compensation for a self-inflicted
injury. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Claimant appealed from administrative decision denying his claim for workers'
compensation benefits in connection with hand injury he sustained when he struck air
conditioning unit after twice hitting his head.
__________
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.
115 Nev. 201, 202 (1999) Mauer v. EICON
injury he sustained when he struck air conditioning unit after twice hitting his head. The
district court denied judicial review and affirmed the denial of benefits, and claimant
appealed. The supreme court held that injury was not accidental, but foreseeable and
self-inflicted and, therefore, not compensable.
Affirmed.
Robert G. Giunta, Las Vegas, for Appellant.
Lenard Ormsby, General Counsel, and Javier A. Arguello, Associate General Counsel,
Carson City, for Respondent Employers Insurance Company of Nevada.
1. Workers' Compensation.
Claimant's injury to his hand which occurred when he angrily hit air conditioner with his fist after he
bumped his head twice on unit was not accidental, for workers' compensation purposes, but was
foreseeable and self-inflicted and, therefore, not compensable under provision of workers' compensation
statute precluding compensation for an injury caused by an employee's willful intention to injure himself.
NRS 616A.020(1), 616C.230(1)(a).
An intentional violent act that produces a foreseeable and reasonably expected self-injury is not an accident and the resulting
injury is not covered under workers' compensation statute. NRS 616C.230(1)(a).
The workers' compensation scheme does not make employers absolutely liable for injuries suffered by employees who are on the
job.
Before Maupin, Shearing and Becker, JJ.
OPINION
Per Curiam:
This appeal asks us to decide whether a self-inflicted workplace injury resulting from an employee's impulsive, angry act is
compensable under Nevada's workers' compensation law. We conclude it is not.
The facts are not disputed. Appellant Russell Mauer, while working in November 1995 for respondent Bryant Universal Roofers, hit
his head on the corner of a large rooftop air conditioning unit. When Mauer hit his head on the unit a second time, he angrily hit the unit
with his fist. As a result of his encounters with the air conditioner, Mauer sustained a superficial skull abrasion and fractured his right hand.
Respondent Employers Insurance Company of Nevada (EICON, formerly the State Industrial Insurance System or SIIS)
accepted Mauer's claim for the skull injury, but denied Mauer's claim for the hand injury under NRS
616C.230{1){a), which precludes compensation for an injury caused by the employee's "willful intention to
injure himself."
115 Nev. 201, 203 (1999) Mauer v. EICON
Industrial Insurance System or SIIS) accepted Mauer's claim for the skull injury, but denied
Mauer's claim for the hand injury under NRS 616C.230(1)(a),
1
which precludes
compensation for an injury caused by the employee's willful intention to injure himself. A
hearing officer and an appeals officer upheld the claim denial, and the district court denied
judicial review.
Since the facts are not disputed, and this appeal presents a question of statutory
construction, independent appellate review is appropriate. Maxwell v. SIIS, 109 Nev. 327,
849 P.2d 267 (1993); Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 683 P.2d 3 (1984).
In Nevada, workers' compensation benefits are available to covered employees injured by
accident arising out of and in the course of employment. NRS 616A.020(1).
2
Thus, the
threshold question in this case is whether Mauer sustained an injury by accident.
In a similar case, the Utah Supreme Court decided an injury like Mauer's is not accidental,
and is therefore not compensable. The employee in McKay Dee Hospital v. Industrial
Commission of Utah, 598 P.2d 375 (Utah 1979), after discussing leave time with his
supervisor, angrily slammed his fists into two metal doors; he broke a bone in one hand.
Based on a finding that the injury was not purposely self-inflicted, an administrative law
judge ruled it was compensable.
3
Id. at 376-77. Reversing, the Utah Supreme Court
observed that an accident means an unforeseen happening or unexpected mishap; thus,
although an accident may result from intentional activity, the injury must be unexpected or
unforeseen. Id. at 377. Because it is foreseeable and expected that an injury to the hand will
result from slamming one's fist into a locked, stationary metal door, the court concluded there
was no accident and workers' compensation was not warranted. Id.
In his treatise, The Law of Workmen's Compensation 36.62 at 6-200 (1997),
4
professor
Arthur Larson deems McKay a bad decision."
__________

1
Substituted in revision for NRS 616.565(1)(a).

2
Substituted in revision for NRS 616.370.

3
When McKay was decided, Utah Code Ann. 35-1-45 provided in relevant part:
Every employee mentioned in 35-1-43 who is injured . . . by accident arising out of or in the course
of his employment, wheresoever such injury occurred, provided the same was not purposely
self-inflicted, shall be entitled to . . . compensation[.]
In 1997 this provision was revised and renumbered 34A-2-401(1). The text of the statute has not
substantially changed, although it now requires an accident arising out of and in the course of employment.

4
In the 1999 edition, this section has been renumbered 38.06. The text has not changed, but it now appears
on page 38-21.
115 Nev. 201, 204 (1999) Mauer v. EICON
decision. According to Larson, the claimant clearly did not intend to break his hand. Larson
continues:
Of course, it was possible that these injuries would result in each case. It is quite
another matter to say that it was expected, much less intended. To conclude that the
claimant expected or intended to break his hand, and slammed the door with his fist
anyway, is preposterous. There is no place in compensation law for this artificial and
fictitious kind of intention. Carried to its logical conclusion, this concept would rule
out compensation for practically every rash intentional act, on the theory that injury
from such conduct was foreseeable.
Id.
Two subsequent cases have rejected Larson's analysis in favor of McKay's. The
employee in Glodo v. Industrial Commission of Arizona, 955 P.2d 15 (Ariz. Ct. App. 1997),
punched the metal door of a freezer after his supervisor asked him to stay late and clean a
floor; he fractured a finger. An administrative law judge denied the employee's claim for
compensation, and the court of appeals affirmed the denial.
5
Finding the rationale of McKay
persuasive, and agreeing that an accidental injury must be one that is unexpected or
unforeseen, the Arizona appellate court held the claimant's intentional act was not an
accident eligible for compensation. Id. at 18.
The Arizona court acknowledged professor Larson's criticism of McKay, but noted it
found no decision agreeing with him that such injuries are compensable. Id. at 19.
Furthermore, the court disagreed with Larson's analysis, concluding it suffers from apparent
confusion of that which is intended and that which is expected. According to the court:
The dispositive question in deciding whether something is an accident is whether the
result is unexpected or unforeseen, not whether the result was unintended. Our
cases do provide compensation for unexpected injuries that were the result of
intentional acts. While neither the claimant in McKay nor the one in the present case
may have intentionally set out to break his hand, it would be preposterous to say it was
unanticipated that in punching a metal door, he could break his hand. If we were to
adopt Larson's reliance on intent alone, compensation could be denied only when a
claimant freely admitted to having intentionally punched a metal door in order to
break his hand to spite his employer.
__________

5
Ariz. Rev. Stat. 23-1021(A), which was adopted from Utah's law, provides in relevant part:
Every employee coming within the provisions of this chapter who is injured . . . by accident arising out of
and in the course of his employment, wherever the injury occurred, unless the injury was purposely
self-inflicted, shall be entitled to . . . compensation . . . .
115 Nev. 201, 205 (1999) Mauer v. EICON
on intent alone, compensation could be denied only when a claimant freely admitted to
having intentionally punched a metal door in order to break his hand to spite his
employer.
Id. Finally, the court concluded Larson's pronouncement that there is no place in
compensation law for drawing such distinctions is wrong, and that important social policy
considerations support distinguishing the claimant's self-injurious conduct from compensable
conduct. Id.
The employee in Klein v. New York Times Co., 721 A.2d 29 (N.J. Super. Ct. App. Div.
1998), enraged by his supervisor's criticism of his job performance, smashed his fist into an
electrical box; he broke two bones in his hand. The administrative law judge ruled the injury
compensable because the employee acted impulsively and did not intend to harm himself.
6
Id. at 30. The New Jersey appellate court reversed, concluding the injury (1) was not the
result of an accident, because an accident is an unlooked for or unexpected occurrence, and
(2) did not arise out of the employment, but rather out of the employee's personal
proclivities and his unreasonable reaction to a supervisor's routine personnel action. Id. at
31-33.
The New Jersey court noted its conclusion, that an intentionally violent act that produces a
reasonably expected self-injury is not an accident under workers' compensation law,
accords with the weight of authority in other jurisdictions in cases involving the same
circumstances. Id. at 32. Moreover, the court declared it was not deterred from reaching its
conclusion by the contrary view expressed by Professor Larson, noted the Glodo court
expressly rejected Larson's view, and quoted with approval the Glodo court's reasoning. Id.
[Headnotes 1, 2]
Mauer, who does not address the Glodo and Klein decisions, asks this court to reject
McKay's reasoning and adopt Larson's analysis. This we decline to do. We conclude that
McKay, Glodo and Klein are the better-reasoned authorities. Their conclusion that a
self-inflicted injury under the circumstances of these cases is not the result of an accident
fits well with this state's statutory definition of that term. NRS 616A.030
7
defines accident
as "an unexpected or unforeseen event happening suddenly and violently, with or without
human fault, and producing at the time objective symptoms of an injury."
__________

6
N.J. Stat. Ann. 34:15-1 provides, in relevant part:
When personal injury is caused to an employee by accident arising out of and in the course of his
employment . . . he shall receive compensation . . .
N.J. Stat. Ann. 34:15-7 provides, among other things, for payment of compensation to covered injured
employees according to statutory schedules in all cases except when the injury or death is intentionally
self-inflicted.

7
Substituted in revision for NRS 616.020.
115 Nev. 201, 206 (1999) Mauer v. EICON
as an unexpected or unforeseen event happening suddenly and violently, with or without
human fault, and producing at the time objective symptoms of an injury. What is missing in
this case, as it was in the three cases summarized above, is the element of unexpectedness or
unforeseeability. The result of Mauer's angry act cannot be characterized as either unexpected
or unforeseeable. Thus, we hold that an intentional violent act that produces a foreseeable and
reasonably expected self-injury is not an accident and the resulting injury is not covered
under Nevada's workers' compensation law.
8

[Headnote 3]
This construction of the term accident guides interpretation of the statutory provision
precluding compensation for an injury caused by the employee's willful intention to injure
himself. As the Glodo decision points out, a literal application of this provision (or the
analogous purposeful self-infliction of injury provision) is illogical; it would preclude
compensation in a case like this only when a claimant freely admits having intentionally
punched a solid immovable object in order to break his hand. Compensating individuals who
engage in self-injurious conduct seems both unwise and contrary to the spirit of workers'
compensation laws. As we have previously recognized, the workers' compensation scheme
does not make employers absolutely liable for injuries suffered by employees who are on the
job. Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 605, 939 P.2d 1043, 1046 (1997).
Accordingly, we affirm the district court's order dismissing appellant's petition for judicial
review.
9

__________

8
Here, although not specifically addressing whether there was an accident, the appeals officer expressly found
and concluded that Mauer's hand injury was a foreseeable consequence of his intentional act (striking the air
conditioning unit).

9
Pursuant to NRAP 34(f), we have concluded that oral argument is not warranted in this appeal.
____________
115 Nev. 207, 207 (1999) Lee v. State
DARRELL GLENN LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28485
August 27, 1999 985 P.2d 164
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of attempted
robbery. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
After denial of motion to withdraw guilty plea, defendant was convicted in the district
court of attempted robbery and was sentenced to imprisonment and payment of restitution.
Defendant appealed. The supreme court held that: (1) where the record shows defendant was
otherwise fully informed regarding the possibility of being ordered to pay restitution as a
consequence of the plea, the defendant will not be heard to complain that this information did
not come directly from the district court, overruling Cruzado v. State, 110 Nev. 745, 747, 879
P.2d 1195, 1196 (1994); (2) trial court was not required to conduct a hearing on defendant's
motion to withdraw his guilty plea; (3) trial court properly accepted defendant's plea; and (4)
the sentence was not based on mere speculation.
Affirmed.
Joan D. Buckley, Las Vegas, for Appellant.
1. Criminal Law.
Defendant was fully informed of the possibility of being ordered to pay restitution as a consequence of
his guilty plea, though the trial court did not communicate such information during the plea canvass, where
the written plea agreement expressly provided defendant would be ordered to pay restitution if appropriate
and defendant acknowledged in open court that he read the agreement and discussed it with his attorney
before signing it. NRS 174.035(2), 174.063.
2. Criminal Law.
Where the record shows the defendant was otherwise fully informed regarding the possibility of being ordered to pay restitution as
a consequence of the plea, the defendant will not be heard to complain that this information did not come directly from the district
court; overruling Cruzado v. State, 110 Nev. 745, 747, 879 P.2d 1195, 1196 (1994). NRS 174.035(2), 174.063.
3. Criminal Law.
Even though the district court is required to canvass a defendant to determine if the plea is made voluntarily with understanding of
the nature of the charge and consequences of the plea only if the plea is entered orally, it is still advisable for the district courts to
satisfy themselves and establish a record showing that each plea, including one entered upon a written plea
agreement, is entered voluntarily and with an understanding of the nature of the charges and the
consequences of the plea.
115 Nev. 207, 208 (1999) Lee v. State
establish a record showing that each plea, including one entered upon a written plea agreement, is entered
voluntarily and with an understanding of the nature of the charges and the consequences of the plea. NRS
174.035(2), 174.063.
4. Criminal Law.
Written plea agreement in which defendant waived [t]he right to appeal the conviction . . . unless the appeal is based upon
reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceedings did not waive defendant's right
to directly appeal trial court's denial of prejudgment motion to withdraw a guilty plea based on breach of alleged promise to reduce bail
and release defendant on his own recognizance. NRS 174.063, 177.045.
5. Criminal Law.
A district court's ruling on a prejudgment motion to withdraw a guilty plea is reviewable on direct appeal from the judgment as an
intermediate order in the proceeding. NRS 177.045.
6. Criminal Law.
Trial court was not required to conduct a hearing on defendant's motion to withdraw his guilty plea based on breach of alleged
promise to reduce bail and release defendant on his own recognizance, where bail reduction was not mentioned in the written plea
agreement and was not discussed in the plea canvass, and where defendant confirmed when entering the plea that he had not received
promises other than those in written plea agreement.
7. Criminal Law.
Trial court properly accepted defendant's guilty plea, where defendant was fully informed by the written plea agreement of the
nature of the charges against him and the consequences of his plea, the trial court personally canvassed defendant at plea entry, and
defendant admitted in open court to committing the acts underlying the offense for which he entered his plea.
8. Criminal Law.
A guilty plea is presumptively valid.
9. Criminal Law.
Allegation that presentence investigation report contained insufficient information about defendant and that sentence of
imprisonment was based on speculation in form of report's recommendation that defendant be denied probation since defendant's
actions could have resulted in more severe or serious consequences, was not basis to disturb sentence of imprisonment,
notwithstanding relative paucity of information on defendant in report, where paucity was due to defendant's refusal to speak or
cooperate with the investigator who prepared the report, and record revealed that court sentenced defendant, not based on speculation,
but for the illegal acts defendant committed.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a guilty plea, of one count of attempted robbery. The district court
sentenced appellant Darrell Glenn Lee to serve a minimum of eighteen {1S) and a maximum of forty-five {45)
months in the Nevada State Prison.
115 Nev. 207, 209 (1999) Lee v. State
sentenced appellant Darrell Glenn Lee to serve a minimum of eighteen (18) and a maximum
of forty-five (45) months in the Nevada State Prison. Further, the district court ordered
appellant to pay restitution in the amount of six hundred and sixty-four dollars and twenty
cents ($664.20).
[Headnote 1]
Appellant contends that the district court improperly ordered him to pay restitution
because the district court did not inform him at the plea canvass that a requirement to pay
restitution was a possible consequence of his guilty plea. Appellant accordingly asks this
court to vacate the requirement in his judgment of conviction that he make restitution.
Appellant cites to Cruzado v. State, 110 Nev. 745, 747, 879 P.2d 1195, 1196 (1994), which
states that the district court must inform a defendant at the plea canvass of the direct
consequences of his guilty plea, including the possibility of restitution.
We note, however, that the written plea agreement which appellant signed before entering
his plea explicitly provides that, if appropriate, he would be ordered to make restitution to the
victims of the offense to which he was entering his plea and to the victims of any related
offense. Appellant acknowledged in open court that he had read the agreement and had
discussed it with his attorney before signing it. Although the district court did not personally
canvass appellant regarding restitution, appellant was fully informed by the written plea
agreement that a requirement to pay restitution was a possible consequence of his plea.
Appellant will not now be heard to complain that there is a technical requirement that this
information must come directly from the district court. Cf. United States v. Grewal, 825 F.2d
220, 222 (9th Cir. 1987) (there is no constitutional error where a trial court has not informed a
defendant on the record of the maximum possible penalty if the defendant otherwise knows
the maximum possible penalty).
[Headnotes 2, 3]
Also, we note that since the legislature's 1995 amendment of NRS 174.035(2) and
enactment of NRS 174.063, written plea agreements are required to notify the defendant of
the possibility of a restitution requirement. See 1995 Nev. Stat., ch. 480, 1, at 1531-34.
Under those statutes, only when the plea is entered orally is the district court explicitly
required to canvass a defendant to determine that the plea is made voluntarily with an
understanding of the nature of the charge and the consequences of the plea. NRS 174.035(2).
Of course, even under these statutes, it is still advisable for the district courts to satisfy
themselves and establish a record showing that each plea, including one entered upon a
written plea agreement, is entered voluntarily and with an understanding of the nature of
the charges and the consequences of the plea.
115 Nev. 207, 210 (1999) Lee v. State
upon a written plea agreement, is entered voluntarily and with an understanding of the nature
of the charges and the consequences of the plea. However, where, as here, the record shows
that the defendant was otherwise fully informed regarding these matters, the defendant will
not be heard to complain that this information did not come directly from the district court.
To the extent that our opinion in Cruzado can be read otherwise it is hereby overruled.
Accordingly, we affirm the district court's order for appellant to pay restitution.
[Headnote 4]
Appellant further contends that the district court erred in denying his pre-judgment motion
to withdraw his guilty plea because he was not granted a promised bail reduction and release
on his own recognizance and because he did not knowingly and voluntarily waive his right to
appeal. Appellant also contends that the district court abused its discretion by refusing to hold
a hearing on his motion to withdraw his guilty plea.
[Headnote 5]
The state argues that appellant may not challenge his guilty plea on direct appeal as a
matter of law and because appellant, in his plea agreement, waived his right to appeal. We
disagree. First, a district court's ruling on a pre-judgment motion to withdraw a guilty plea is
reviewable on direct appeal from the judgment as an intermediate order in the proceeding. See
Hargrove v. State, 100 Nev. 498, 502 n.3, 686 P.2d 222, 225 n.3 (1984) (citing NRS
177.045). Second, in the plea agreement, which followed the form set forth in NRS 174.063,
appellant waived [t]he right to appeal the conviction . . . unless the appeal is based upon
reasonable constitutional, jurisdictional or other grounds that challenge the legality of the
proceedings and except as otherwise provided in subsection 3 of NRS 174.035. We conclude
that this clause in appellant's plea agreement does not bar this appeal.
[Headnote 6]
Regarding appellant's claim that he was entitled to a hearing on his motion to withdraw his
plea based on the alleged failure to obtain bail reduction and release on his own recognizance,
bail reduction is not mentioned in appellant's plea agreement and was not discussed in the
plea canvass. Appellant confirmed when he entered his plea that he had not received promises
other than those contained in the plea agreement. Thus, the record repels appellant's claim
that he had been promised bail reduction and release on his own recognizance in return for
entering a guilty plea, and the district court was not required to conduct a hearing on that
claim. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
115 Nev. 207, 211 (1999) Lee v. State
[Headnotes 7, 8]
Regarding the district court's denial of appellant's motion to withdraw the plea, the record
shows that appellant was fully informed by the written plea agreement of the nature of the
charges against him and the consequences of his plea. Further, the district court personally
canvassed appellant at plea entry and determined that he knowingly waived his right to a trial.
Moreover, appellant admitted in open court to committing the acts underlying the offense for
which he entered his plea. On this record, the district court properly accepted appellant's
guilty plea. See Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994); Bryant v.
State, 102 Nev. 268, 273-74, 721 P.2d 364, 368-69 (1986). A guilty plea is presumptively
valid, and appellant has failed to establish that his was not. See Bryant, 102 Nev. at 272, 721
P.2d at 368. The district court did not err or abuse its discretion in denying appellant's motion
to withdraw the plea.
[Headnote 9]
Finally, appellant contends that the district court had an inadequate factual basis for
sentencing him because the presentence investigation report contained insufficient
information about him. Appellant further contends that his sentence is based on speculation
because the report recommends against probation since his actions could have resulted in
more severe or serious consequences.
The relative paucity of information on appellant in the presentence investigation report is
due to appellant's refusal to speak or cooperate with the investigator who prepared the report.
Review of the record in this case reveals, however, that appellant was not sentenced based on
speculation. Rather, the district court sentenced appellant for the illegal acts that he
committed. Consequently, this claim is not a basis for disturbing his sentence. See Lloyd v.
State, 94 Nev. 167, 170, 576 P.2d 740, 742 (1978) (this court will not interfere with a district
court's sentencing determination unless the appellant can show that his sentence was based on
information supported only by impalpable or highly suspect evidence). Accordingly, we
affirm appellant's judgment of conviction, including the requirement that he pay restitution.
____________
115 Nev. 212, 212 (1999) Sahara Gaming v. Culinary Workers
SAHARA GAMING CORPORATION, a Nevada Corporation, and SAHARA MISSION
VALLEY, INC., a Nevada Corporation, Appellants, v. CULINARY WORKERS
UNION LOCAL 226, Affiliated With HOTEL EMPLOYEES AND RESTAURANT
EMPLOYEES INTERNATIONAL UNION, AFL-CIO; and HOTEL EMPLOYEES
AND RESTAURANT EMPLOYEES INTERNATIONAL UNION AFL-CIO,
Respondents.
No. 28555
August 27, 1999 984 P.2d 164
Appeal from orders granting summary judgment. Eighth Judicial District Court, Clark
County; Donald M. Mosley, Judge.
Casino brought action for defamation, interference with contract, and civil conspiracy
against labor union, relating to labor union's republication of allegedly defamatory fraud
accusations made against a casino in a formal complaint filed in a judicial action. The district
court granted summary judgment for labor union. Casino appealed. The supreme court,
Leavitt, J., held that the labor union's republication of the accusations to a prospective
purchaser of casino management services and real estate from the casino was protected by the
absolute fair report privilege for judicial proceedings.
Affirmed.
Kirshman, Harris & Branton, Las Vegas, for Appellants.
McCracken, Stemerman, Bowen & Holsberry and Michael T. Anderson, Las Vegas;
Thorndal, Backus, Armstrong & Balkenbush and Brian K. Terry, Las Vegas, for Respondents.
1. Libel and Slander.
The fair report privilege is absolute for reports of official proceedings which are accurate and complete
or a fair abridgement of the occurrence reported, regardless of the report's falsity or the reporter's knowledge
of the report's falsity.
Labor union's republication, to prospective purchaser of casino management services and real estate from casino, of allegedly
defamatory fraud accusations made against a casino in a formal complaint filed in a judicial action in another state, was protected by
the absolute fair report privilege for judicial proceedings, even if the statements were false, were made with knowledge of their falsity,
and were republished with intent to harm the casino.
OPINION
By the Court, Leavitt, J.:
This is a defamation and interference with contract case arising out of a labor dispute
between non-party subsidiaries of appellants Sahara Gaming Corporation (Sahara Gaming)
and Sahara Mission Valley (Sahara Mission) (collectively Sahara), and respondents, a labor
union and its affiliates (collectively, the Union).
At the time of the labor dispute, Sahara Gaming was negotiating a multi-million dollar
contract with Players International concerning a land sales and management agreement. The
Union became aware of the negotiations and sent a letter to Players International asking it not
to enter into a contract with Sahara Gaming. The letter accurately quoted a portion of a
complaint filed in Mississippi which alleged that Sahara Gaming had committed fraud in
another casino deal. Sahara alleges the Union republished the allegations presented in the
complaint with full knowledge the statements were false and with the intent to cause harm to
Sahara.
We must decide as a matter of law if a republication of a judicial proceeding constitutes an
absolute privilege, when the statements are false or malicious and are republished with the
intent to harm another. We hold the privilege is absolute.
Sahara Mission entered into a written agreement to sell real property to Players
International for a sum in excess of $15,000,000.00. The agreement further provided Players
International would pay Sahara Mission a management consulting fee of $2,900,000.00. In
the letter to the Chairman and Chief Executive Officer of Players International the Union
informed it that a contentious labor dispute existed between Sahara and the Union and that
by acquiring the Henderson property, Players is putting itself in the middle of this dispute.
The letter further quoted from a complaint filed in a lawsuit in Mississippi involving Sahara
and Treasure Bay Gaming & Resorts, Inc., wherein Sahara was being sued concerning a
gaming management agreement, as follows:
The representations Lowden made to Miller
1
to induce Miller to proceed with
Lowden's plan and transfer his assets to Treasure Bay were false. At the time Lowden
made the representations, neither he nor Sahara intended to staff Treasure Bay's casinos
with experienced managers or experienced marketing staff employed by Sahara.
__________

1
Lowden is Sahara's Chairman and Chief Executive Officer. Miller is Francis L. Miller, the founder and
former Chairman and Chief Executive Officer of Treasure Bay.
marketing staff employed by Sahara. Nor did Lowden or Sahara intend to fulfill its
duties as loyal agents in managing the Treasure Bay casinos. In addition, the budget
projections Lowden and Sahara provided misrepresented the expenses Lowden and
Sahara knew it would incur in opening the casinos.
Approximately two weeks after the letter was sent, Players International cancelled the
management consulting agreement.
Sahara filed suit against the Union alleging that the Union republished Miller's statements
in the complaint filed in the Mississippi action knowing they were false or with reckless
disregard for the truth or falsity of the allegations. It further alleged the Union published the
matter with wrongful and willful intent to injure Sahara. In addition Sahara filed claims for
civil conspiracy, interference with contract, and interference with prospective economic
advantage.
Union filed for summary judgment on the defamation and civil conspiracy claims; the
district judge granted the motion and ordered summary judgment be entered on the two
claims. The district judge reasoned as to the defamation claim that the letter accurately quoted
the allegations contained in the Mississipi complaint in that it was a fair and true recital and
any person has a right to make a fair recital about a court case. As to the civil conspiracy
claim, the court reasoned that it was derivative of the defamation claim and also granted
summary judgment in favor of the Union on that cause of action. Subsequently, the district
judge granted summary judgment in favor of the Union on the interference with contract and
interference with prospective economic advantage claims on the ground that they, too, were
derivative of the defamation claim.
2

The purpose of summary judgment is to avoid a needless trial when an appropriate
showing is made in advance that there is no genuine issue of fact to be tried, and the movant
is entitled to judgment as a matter of law. Coray v. Hom, 80 Nev. 39, 40-41, 389 P.2d 76, 77
(1964). In determining whether summary judgment is proper, the nonmoving party is
entitled to have the evidence and all reasonable inferences accepted as true. Wiltsie v. Baby
Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989) (citing Johnson v. Steel,
Incorporated, 100 Nev. 181, 183, 678 P.2d 676, 677 (1984)). Orders granting summary
judgment are reviewed de novo. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, S25 P.2d
5SS, 591 {1992) {citing Tore, Ltd. v. Church, 105 Nev. 1S3, 1S5, 772 P.2d 12S1, 12S2
{19S9)).
__________

2
Although the dismissal of the interference with contract claims was presented to the district court upon a
NRCP 12(c) motion, matters outside the pleadings were presented to the district court, and the motion was
treated as one for summary judgment under NRCP 56. See NRCP 12(c).
110, 825 P.2d 588, 591 (1992) (citing Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d
1281, 1282 (1989)).
There is no factual dispute here that the Union's letter was a fair and accurate report of the
complaint in the Mississippi litigation; instead, Sahara is asserting that the report was made
with malice and with intent to harm.
[Headnote 1]
The law has long recognized a special privilege of absolute immunity from defamation
given to the news media and the general public to report newsworthy events in judicial
proceedings. Although the courts are open to the public, not everyone can attend hearings.
The news media acts as an agent of the people to inform the public what transpires in the
courtroom and to ensure the fairness of the proceedings. In exchange for this absolute
privilege, comes the requirement and responsibility that the report be fair, accurate, and
impartial. Opinions must be left to the editorial pages or editorial segments of television
broadcasts.
Although the privilege is usually directed toward the news media and others engaged in
reporting news to the public, it is not limited to republication by these publishers, but extends
to any person who makes a republication of a judicial proceeding from material that is
available to the general public. See Restatement (Second) of Torts 611 cmt. c (1977). Here,
the complaint was readily available for public inspection as a pleading in a judicial
proceeding.
This court first set forth the rule prior to the turn of the century when it stated in
Thompson v. Powning, 15 Nev. 195, 203 (1880), the following:
A fair and impartial account of the proceedings in a court of justice is, as a general rule,
a justifiable publication. Proprietors of newspapers are not to be punished for
publishing a fair, full, and true report of judicial proceedings, except upon actual proof
or [sic] malice in making the report. The reason for this rule is, that the public have
[sic] a right to know what takes place in a court of justice, and unless the proceedings
are of an immoral, blasphemous, or indecent character, or accompanied with
defamatory observations or comments, the publication is privileged.
(Citations omitted.)
This early ruling seems to grant only a conditional privilege; if the report is made with
actual malice or accompanied with defamatory opinions, the privilege is abused and lost.
However, this court later established a new absolute privilege rule. The court held that
defamatory matter published from a judicial proceeding is absolutely privileged provided the
answers of the witness are relevant and pertinent to the subject of inquiry, whether or not
they are false or malicious."
relevant and pertinent to the subject of inquiry, whether or not they are false or malicious.
Nickovich v. Mollart, Et Al., 51 Nev. 306, 313, 274 P. 809, 810 (1929) (emphasis added).
The court later extended the absolute privilege to quasi-judicial proceedings saying, By
granting an absolute privilege to statements made before a quasi-judicial body, the right of
individuals to express their views freely upon the subject under consideration is protected.
Knox v. Dick, 99 Nev. 514, 518, 665 P.2d 267, 270 (1983).
This court reaffirmed the absolute privilege rule in Circus Circus Hotels v. Witherspoon,
99 Nev. 56, 60, 657 P.2d 101, 104 (1983), wherein we stated:
[There] is [a] long-standing common law rule that communications uttered or published
in the course of judicial proceedings are absolutely privileged so long as they are in
some way pertinent to the subject of controversy. The absolute privilege precludes
liability even where the defamatory statements are published with knowledge of their
falsity and personal ill will toward the plaintiff.
(citations omitted) (referring to NRS 612.265(7)
3
in which the rule has been codified as to
communications from an employer as to the Employment Security Division pursuant to
Chapter 612). This court further explained as follows: The policy underlying the privilege is
that in certain situations the public interest in having people speak freely outweighs the risk
that individuals will occasionally abuse the privilege by making false and malicious
statements. Id. at 61, 657 P.2d at 104 (citing Ducosin v. Mott, 642 P.2d 1168, 1170-71 (Or.
1982)); see Knox, 99 Nev. at 517-18, 665 P.2d at 270. This court further stated, On the basis
of this policy, the absolute privilege attached to judicial proceedings has been extended to
quasi-judicial proceedings before executive officers, boards, and commissions, including
proceedings in which the administrative body is considering an employee's claim for
unemployment compensation. Id. at 61, 657 P.2d at 104 (citing Krenek v. Able, 594 S.W.2d
821, 823 (Tex. Civ. App. 1980)).
In a claim for defamation and intentional infliction of emotional distress, this court
extended the absolute privilege rule to occasions where a citizen files a complaint with an
internal affairs bureau against a police officer.
__________

3
This provision has been renumbered as NRS 612.265(12) and now reads as follows:
All letters, reports or communications of any kind, oral or written, from the employer or employee to
each other or to the division [employment security department] or any of its agents, representatives or
employees are privileged and must [shall] not be the subject matter or basis for any lawsuit if the letter,
report or communication is written, sent, delivered or prepared pursuant to the requirements of this
chapter.
New wording is noted in bold and prior wording is in brackets.
distress, this court extended the absolute privilege rule to occasions where a citizen files a
complaint with an internal affairs bureau against a police officer. We stated, The extension
of the privilege promotes the public's interest by allowing civilian complaints against public
officials to be aired in the proper forum without fear of civil liability. Lewis v. Benson, 101
Nev. 300, 301, 701 P.2d 751, 752 (1985) (citing Campo v. Rega, 433 N.Y.S.2d 630, 631
(App. Div. 1980)). This court concluded, Thus, the application of an absolute privilege to
civilians filing complaints with an internal affairs bureau sufficiently promotes the interest of
the public to warrant the availability of an absolute privilege. Id. at 301, 701 P.2d at 752.
Additionally, defamatory statements made by an attorney during a medical malpractice
case were absolutely privileged when the attorney referred to the defendant doctor as
incompetent, a fumble-fingered fellow, a liar, a scoundrel, a damned idiot. Bull v.
McCuskey, 96 Nev. 706, 708, 615 P.2d 957, 961 (1980), overruled on other grounds by Ace
Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). The attorney also said of the doctor,
[h]e will lie under oath, steal an elderly woman's redress, cheat if he can get away with it,
and all that is left for him is to make a pact with the devil and murder those who would
oppose him. Id. at 708-09, 615 P.2d at 961. This court said, As a general proposition an
attorney at law is absolutely privileged to publish defamatory matter concerning another in
communications preliminary to a proposed judicial proceeding, or in the institution of, or
during the course and as part of, a judicial proceeding in which he participates as counsel, if it
has some relation to the proceeding. Id. at 711-12, 615 P.2d at 961 (quoting Restatement
(Second) of Torts 586 (1977)); see Richards v. Conklin, 94 Nev. 84, 84-85 575 P.2d 588,
589 (1978). This court reasoned that the statements may be understood to pertain to either
the doctor's competence or his credibility, and therefore, are privileged. Id. at 712, 615 P.2d
at 961. This court further reasoned, The privilege rests upon a public policy of securing to
attorneys as officers of the court the utmost freedom in their efforts to obtain justice for their
clients. Id. The court did not condone the statements, however, and said, [A]lthough the
denigrative comments of attorney Bull regarding the doctor were privileged, and alone would
not supply a basis for liability in damages, it does not follow that an attorney may so conduct
himself without fear of discipline. Id. The court then pointed out the attorney's oath and
standards of conduct under the Supreme Court Rules could subject him to discipline. Id., 615
P.2d at 962.
This court has also held that the absolute privilege rule applies to letters written in
anticipation of litigation. Specifically such letters are "subject to both an absolute and
qualified privilege."
ters are subject to both an absolute and qualified privilege. Richards, 94 Nev. at 85, 575
P.2d at 589 (citing Romero v. Prince, 513 P.2d 717, 719-20 (N.M. App. 1973)).
Thus, we have recognized the absolute privilege rule as to communications uttered or
published in the course of judicial proceedings and extended the privilege to quasi-judicial
hearings, complaints filed with an internal affairs bureau against a police officer, and even
letters written in anticipation of litigation. Certainly, the pleading in this case, a formal
complaint, is covered under the rule of absolute privilege.
Other jurisdictions have adopted the rule: The general rule is that allegations in pleadings
made in the course of judicial proceedings are absolutely privileged if they bear a reasonable
relationship to the subject of the action. Shipley v. Howard, 519 P.2d 1230, 1231 (Colo. Ct.
App. 1974). Defamatory statements contained in pleadings are absolutely privileged if they
are relevant to the subject of inquiry. See Bailey v. Superior Court, Etc., 636 P.2d 144, 146
(Ariz. Ct. App. 1981) (citing Sierra Madre Dev., Inc. v. Via Entrada Town. Ass'n, 514 P.2d
503, 506-07 (Ariz. Ct. App. 1973)). [D]efamatory matter in judicial pleadings, even if false
and malicious, is absolutely privileged when reasonably related to the matter involved.
Stryker v. Barbers Super Markets, Inc., 462 P.2d 629, 631 (N.M. Ct. App. 1969); see accord
Neece v. Kantu, 507 P.2d 447, 452 (N.M. Ct. App. 1973). Pleadings are absolutely
privileged and existence of malice . . . cannot support a claim for defamation. Gem
Trading Co., Inc. v. Cudahy Corp., 603 P.2d 828, 832 (Wash. 1979). Absolute immunity [is
granted] to all statements made in the course of, or incidental to, a judicial proceeding, so
long as they are relevant to the proceedings. Vasquez v. Courtney, 557 P.2d 672, 673 (Or.
1976) (citing Ramstead v. Morgan, 347 P.2d 594, 596 (Or. 1959)). Publications made in the
course of judicial proceedings are absolutely privileged. See Albertson v. Raboff, 295 P.2d
405, 409 (Cal. 1956), partially abrogated by Cal. Civ. Code. 47(b) (West 1999).
Defamatory words, published by parties, counsel or witnesses in the course of a judicial
procedure and which are connected with, or relevant or material to, the cause in hand or
subject of inquiry, constitute an absolutely privileged communication, and no action will lie
therefor, however false or malicious they may in fact be. Hammett v. Hunter, 117 P.2d 511,
512 (Okla. 1941).
On the question of the relevancy requirement, this court has concluded, [T]he test of
relevancy is very broad. The defamatory material need not be relevant in the traditional
evidentiary sense, but need have only some relation' to the proceeding; so long as the
material has some bearing on the subject matter of the proceeding, it is absolutely
privileged."
proceeding, it is absolutely privileged. Circus Circus, 99 Nev. at 61, 657 P.2d at 104
(quoting Restatement (First) of Torts 587 (1938)).
[Headnote 2]
Since the Union's alleged defamatory statements were a fair and accurate report of a
judicial proceeding, they are absolutely privileged, and the material recited will not support a
defamation suit even if the statements were made maliciously and with knowledge of their
falsity. This has been the policy and rule in Nevada for the last seventy years and the privilege
includes administrative hearings, quasi-judicial proceedings as well as judicial actions. It is in
the public's interest to have litigants speak freely in pleadings and while testifying during a
trial or hearing without fear of civil liability. It is the news media and public's right to know
what transpires in the legal proceedings of this state and that is paramount to the fact
someone may occasionally make false and malicious statements. It is the court or
administrator's function to search out and find the truth in all litigation.
The district court ruled correctly in granting summary judgment for the Union.
Sahara also filed claims for interference with contract, civil conspiracy, and interference
with prospective economic advantage but concedes if the defamatory statements are
privileged, then those claims are derivative of the defamation claim or are subject to federal
preemption.
Accordingly, we affirm the district court's orders granting summary judgment.
4

Sullivan, D. J., concurs.
Shearing, J., with whom Agosti, J., joins, concurring:
I agree that the order granting summary judgment should be affirmed. However, I do not
agree with the majority's analysis of this court's prior caselaw and would not adopt the
Restatement position in its totality.
The Nevada cases cited by the majority hold that testimony or reports in judicial and
quasi-judicial proceedings are absolutely privileged, even if made with malice. Knox v. Dick,
99 Nev. 514, 665 P.2d 267 (1983); Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 657
P.2d 101 (1983); Nickovich v. Mollart, 51 Nev. 306, 274 P. 809 (1929). However, none of
these cases hold that republication of statements in such proceedings are absolutely
privileged.
__________

4
The Honorable Jerry V. Sullivan, Judge of the Sixth Judicial District Court, was designated by the Governor
to sit in place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
leged. This court, as early as 1880, in Thompson v. Powning, 15 Nev. 195, 203 (1880),
recognized a conditional privilege for republication of a fair, full, and true report of judicial
proceedings. The reason for the privilege was the same in 1880 as it is now, namely, that
the public have a right to know what takes place in a court of justice . . . Id. Truth was a
justification under this common law privilege, but even proof of lack of malice in the
republication of a falsity was held only to mitigate exemplary damages, not actual damages.
Id. at 207.
The Restatement (Second) of Torts 611 (1977) provides:
The publication of defamatory matter concerning another in a report of an official
action or proceeding or of a meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate and complete or a fair abridgement
of the occurrence reported.
The comments to Section 611 of the Restatement make clear that the privilege is absolute if
the report is a fair and accurate report of the official action or proceeding. Id. at cmt. a. The
truth or knowledge of the reporter is irrelevant as long as the report is fair and accurate. I
agree we should adopt the Restatement position that the fair report privilege is absolute for
reports of official proceedings which are accurate and complete or a fair abridgement of the
occurrence reported.
However, I do not agree with a limitation which the Restatement places on the fair report
privilege. The Restatement takes the position that the privilege applies only to official
actions, not to preliminary pleadings, such as a complaint or petition, before any judicial
action is taken. Id. at cmt. e. I would hold that the fair report privilege applies to republication
of all public records of judicial cases, whether or not any judicial action has been taken. The
view in England and the majority view in America until the early part of this century was that
the common law privilege applied only after there was judicial action. Rodney A. Smolla,
Law of Defamation 8.10[2][a][ii] (1998). That is no longer the majority view in this
country. Id. The more modern view is that a lawsuit from beginning to end is in the nature of
a judicial proceeding and that a pleading is a public act in the course of judicial proceedings.
Id. The leading case on this issue is Campbell v. New York Evening Post, 157 N.E. 153
(N.Y. 1927), in which Judge Roscoe Pound cited, among other examples, the incongruity of
the republication of ex parte orders being privileged, but not complaints, when there is no
rational basis for a distinction. Judge Pound stated:
The present distinction is indefensible. Therefore we proceed to a logical conclusion,
and uphold the claim of privilege on the ground that the filing of a pleading is a
public and official act in the course of judicial proceedings.
the ground that the filing of a pleading is a public and official act in the course of
judicial proceedings.
Id. at 156.
Further, I do not agree with the dissenting justices that the basis for the fair report privilege
as to pleadings is that pleadings are presumed to be accurate and reliable. I believe the basis
for the privilege is that the public is entitled to know what is in the public record. In Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975), the United States Supreme Court held
that a state is precluded from imposing civil liability based upon the publication of truthful
information contained in official records open to public inspection. Although the holding may
not be directly applicable here, the language of the Supreme Court opinion is instructive. In
the opinion of the Court, Justice White stated:
By placing the information in the public domain on official court records, the State
must be presumed to have concluded that the public interest was thereby being served.
Public records by their very nature are of interest to those concerned with the
administration of government, and a public benefit is performed by the reporting of the
true contents of the records by the media. The freedom of the press to publish that
information appears to us to be of critical importance to our type of government in
which the citizenry is the final judge of the proper conduct of public business. In
preserving that form of government the First and Fourteenth Amendments command
nothing less than that the States may not impose sanctions on the publication of truthful
information contained in official court records open to public inspection.
Id. at 495. The mischief perpetrated by a scheme to file false pleadings merely to publish lies
with impunity is far less than the mischief perpetrated by denying the public access to official
court pleadings.
In this case there is no dispute that the respondents accurately quoted the officially filed
complaint. Therefore, I agree that summary judgment was appropriately granted.
Rose, C. J., with whom Young, J., agrees, concurring:
I concur because I do not think that the pleadings and affidavits filed in this case create a
triable issue of fact, but I disagree with the majority's legal analysis of the fair report
privilege.
This is not a case about gaming in Nevada. The issues do not involve labor lawit is a
case of libel. The majority turns the traditional concepts of the law of libel upside down by
granting an absolute privilege to reprint any portion of documents filed in court, even if
reprinted with malice and with knowledge that the information is false.
court, even if reprinted with malice and with knowledge that the information is false. The
element of fairness in the fair report privilege is removed by the majority opinion, and
therefore I disagree with the majority's grant of an absolute fair report privilege.
The fair report privilege was recognized at a time when there was a legitimate expectation
that court documents would be accurate and reliable. See Thompson v. Powning, 15 Nev. 195
(1880). Beginning in 1927, the fair report privilege was expanded to cover all pleadings filed
with a court. See Reader's Digest Ass'n v. Superior Ct., 690 P.2d 610 (Cal. 1984); Cox v. Lee
Enter., Inc., 723 P.2d 238 (Mont. 1986); Campbell v. New York Evening Post, 157 N.E. 153
(N.Y. 1927); Ala. Code 13A-11-1161 (1992); Ky. Rev. Stat. Ann. 411.060
(Banks-Baldwin 1994); Ohio Rev. Code Ann. 2317.05 (Anderson 1995). However, there is
still a minority of states that refuse to extend the privilege to pleadings because they
recognize that pleadings often contain false or misleading charges filed for malicious reasons.
See Sanford v. Boston Herald-Traveler Corp., 61 N.E.2d 5 (Mass. 1945); see also
Restatement (Second) of Torts 611 cmt. e (1977) (republication of pleadings not privileged
because no judicial action taken).
Like the minority of states, I find the premise upon which the fair report privilege is
basedthat all court documents are factually reliableto be questionable in today's society.
We have seen lawsuits with extravagant claims filed for political or strategic purposes, and I
would not guarantee the veracity of some of the allegations I have seen or read about in
various pleadings. But aside from the dubious premise upon which the fair report privilege is
based, I believe that the absolute privilege the majority espouses today may lend itself to
much mischief.
1

According to the majority, a privileged occasion arises even when the publisher believes or
knows the information published is false, and publishes the information maliciously with the
intent to harm. The majority's absolute privilege is dangerously broad and protects any
declarant who reports to inform the public that the defamed person was a miserable
individual, or to influence an election, even if the declarant knows the published
information is false.
__________

1
My concurring colleague, Justice Shearing, contends that the fair report privilege should be extended to
pleadings because the public is entitled to know what is in the public record and more mischief would be
perpetrated by denying the public access to court pleadings. I agree with my concurring colleague that the public
has the right to know what is in the public record, but note that refusing to extend the fair report privilege to
pleadings would in no manner limit the public's access to pleadings filed in our courts. Rather, limiting the fair
report privilege to court proceedings would merely serve to hold individuals accountable for maliciously
publishing information in pleadings that they knew or should have known was false. In our state, citizens should
not only have the right to public information, but also the right to compensation for damages suffered when a
publisher reprints public information that the publisher knew or should have known was false.
election, even if the declarant knows the published information is false.
To balance this privilege and make it truly conditional, I would declare that a publisher
loses the protection of the fair report privilege if he or she publishes a statement with actual
malicewhen he or she knew or should have known that the statement was false.
2
The First
Amendment does not and should not be contorted to protect malicious liars merely because
the lies were contained within the context of a judicial action. The Supreme Court of
Pennsylvania eloquently described the ramifications of granting an absolute privilege to
members of the media:
The defendant makes the startling statement in its brief that even if defendant had
known plaintiff was innocent and not a racketeer the broadcast would still be
privileged. This argues that because one is engaged in the business of
news-dispensing, he may circulate a statement which he knows to be utterly false, to the
irreparable injury of the innocent person. This would make legal tender of falsehood,
give dignity to mendacity and make character assassination respectable. There is
nothing in the laws of our country, and certainly not in the precepts of this nation which
would give approval to so utterly immoral a standard of conduct. As the distinguished
Justice Paxson cogently stated it in the case of Briggs v. Garrett, 111 Pa. 404, 414, 2 A.
513, 520;
A lie is never privileged. It always has malice coiled up within it. When a man coins
and utters a lie, or when he repeats it knowing it to be false, the law implies malice, and
he cannot shelter himself behind the doctrine of privileged communications.
Purcell v. Westinghouse Broadcasting Co., 191 A.2d 662, 669-70 (Pa. 1963) (emphasis
added). Moreover, a conditional fair report privilege is in accord with defamation/libel law
principles that grant protection to those who reprint false or misleading court documents in
good faith, without the primary intent to harm the allegedly defamed person.
Although I disagree with the majority's grant of an absolute fair report privilege, I concur
with its decision to affirm the order granting the Union's summary judgment motion. I concur
with its decision because the affidavit submitted by Sahara did not create a triable issue
of material fact.
__________

2
I note that there are numerous jurisdictions where the fair report privilege is conditional and where it may be
lost if the plaintiff demonstrates that the defendant acted with common law or actual malice. See D'Alfonso v.
A.S. Abell Co., 765 F.2d 138 (4th Cir. 1985); Schiavone Constr. Co. v. Time, Inc., 735 F.2d 94 (3d Cir. 1984);
Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1983); Mark v. King Broadcasting Co., 618 P.2d
512 (Wash. Ct. App. 1980).
decision because the affidavit submitted by Sahara did not create a triable issue of material
fact. See Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441 (1993) (the
non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating the
existence of genuine issue for trial). This affidavit created no triable material issues because
it contained no affirmations that the Union acted with malice or knew or should have known
that the information it reproduced from the Mississippi complaint was false. Accordingly, the
instant case should be affirmed as Sahara's affidavit was insufficient to raise a triable issue of
material fact.
Although I concur that the instant case should be affirmed, I disagree with the majority's
conclusion that the union's letter was absolutely privileged. I believe that this court should
adopt a fair report privilege that is truly conditional, a privilege that is lost when one
publishes maliciously. After all, the privilege is a fair report privilegenot an all report
privilege. The fair report privilege is a shield, in that it protects free speech. In this case,
however, the majority takes the shield and fashions it into a sword, allowing the fair report
privilege to be used as a weapon. The majority legitimizes those who publish information
with the knowledge that it was false and with the intent to harm. I believe that this broad rule
will permit unfair play in the future and it is contrary to the basic principles of the law of
libel.
Becker, J., concurring:
I concur with the decision of the majority to affirm the order granting summary judgment
because I do not believe the Union had actual knowledge that the statements made in the
Mississippi action were false. The pleadings and affidavits do not establish a genuine issue
of material fact, nor do they demonstrate that additional discovery is likely to produce such
evidence.
I disagree with the majority's holding that the fair reporting privilege should be absolute
and unconditional. I believe the privilege should be conditional as to the general public and
absolute when applied to the press. If an individual has actual knowledge that information
contained in a legal pleading is false and then reports that information with the intent to harm
another, then such a person should be subject to an action in defamation.
Under the majority's analysis, it is now permissible for individuals to file lawsuits
containing false statements, arrange for the republication of those statements under the fair
reporting privilege, and avoid the consequences of a defamation action.
I agree with Justice Shearing that the privilege should be absolute for representatives of the
press. If a conditional privilege applied to members of the news media, they would be subject
to the cost and expense of defending a lawsuit until it was clear that the plaintiff could
not prove that the press had actual knowledge that the information contained in the
judicial proceeding was false.
the cost and expense of defending a lawsuit until it was clear that the plaintiff could not prove
that the press had actual knowledge that the information contained in the judicial proceeding
was false. This is too great a burden to place upon the members of the fourth estate. The
benefit gained by having the press report upon judicial proceedings outweighs the harm that
could result from one reporter abusing the privilege for profit.
____________
115 Nev. 225, 225 (1999) DeRosa v. Dist. Ct.
JEFFREY DeROSA, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for CARSON CITY, and THE HONORABLE
MICHAEL E. FONDI, District Judge, Respondents, and THE STATE OF NEVADA,
Real Party in Interest.
No. 31666
JANICE LOUISE THOMAS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE MILLS LANE, District Judge; and THE MUNICIPAL COURT OF
THE CITY OF RENO, COUNTY OF WASHOE, STATE OF NEVADA, and THE
HONORABLE PAUL S. HICKMAN, Municipal Court Judge, Respondents, and THE
CITY OF RENO, NEVADA, Real Party in Interest.
No. 32319
August 27, 1999 985 P.2d 157
Original petitions for extraordinary relief.
Motorists convicted of misdemeanor driving under the influence of alcohol (DUI) filed
petitions for extraordinary relief. The supreme court held that: (1) declarations and affidavits
of persons involved in blood-alcohol testing were sufficiently trustworthy to be admitted over
Confrontation Clause objections, overruling Raquepaw v. State, 108 Nev. 1020, 843 P.2d 364
(1992), and (2) statute placing a greater burden on misdemeanor defendants than felony
defendants wishing to assert statutory right to confront witnesses regarding blood-alcohol or
breath testing did not violate equal protection.
Petitions denied.
Steven G. McGuire, State Public Defender, and James P. Logan, Chief Appellate Deputy
Public Defender, Carson City, for Petitioner DeRosa.
Martin H. Wiener, Reno, for Petitioner Thomas.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney,
and Raymond E. Oster, Deputy District Attorney, Carson City; Patricia Lynch, City Attorney,
and Lara C. McKibben, Deputy City Attorney, Reno, for Respondents.
The Confrontation Clause codifies a fundamental right that applies to the states through the Fourteenth
Amendment. U.S. Const. amends. 6, 14.
2. Criminal Law.
At the heart of the Confrontation Clause is a preference for live testimony and cross-examination. U.S. Const. amend. 6.
3. Criminal Law.
Evidence that does not fall within a firmly rooted hearsay exception is presumptively unreliable and inadmissible for
Confrontation Clause purposes; nevertheless, such evidence is admissible if the state rebuts the presumption by showing that the
evidence is sufficiently trustworthy. U.S. Const. amend. 6.
4. Criminal Law.
Both the business record hearsay exception and the public record hearsay exception are firmly rooted hearsay exceptions, for
purposes of determining admissibility of hearsay statements under the Confrontation Clause. U.S. Const. amend. 6; NRS 51.135,
51.155.
5. Criminal Law.
Declaration of phlebotomist who drew blood sample from motorist, affidavit of lab evidence technician who stored the sample,
and affidavit of lab analyst who tested the sample for blood-alcohol level were not business records, within meaning of business
records hearsay exception. The declaration and affidavits were prepared for purposes of litigation and not for use by the businesses
responsible for their preparation. NRS 50.315, 50.320, 51.135.
6. Criminal Law.
The phlebotomist and lab analyst from a privately owned laboratory who drew blood sample from motorist and tested it for
blood-alcohol level, and the hospital phlebotomist who drew another motorist's blood, were not public officials, and thus, their
affidavits or declarations were not admissible under public record hearsay exception in misdemeanor prosecution for driving under the
influence of alcohol (DUI). NRS 50.315, 50.320, 51.155.
7. Criminal Law.
To satisfy the Confrontation Clause, evidence that does not fall within a firmly rooted hearsay exception must possess
particularized guarantees of trustworthiness and must be at least as reliable as evidence admitted under a firmly rooted hearsay
exception, such that adversarial testing would add little to its reliability. U.S. Const. amend. 6.
8. Criminal Law.
Declaration of phlebotomist who drew blood sample from motorist, affidavit of lab evidence technician who stored the sample,
and affidavit of lab analyst who tested the sample for blood-alcohol level were sufficiently trustworthy to be admitted over
Confrontation Clause objections in misdemeanor prosecution for driving under the influence of alcohol {DUI); overruling
Raquepaw v. State, 10S Nev. 1020, S43 P.2d 364 {1992).
(DUI); overruling Raquepaw v. State, 108 Nev. 1020, 843 P.2d 364 (1992). U.S. Const. amend. 6; NRS 50.315,
50.320.
9. Automobiles.
The blood-alcohol test is a routine test of established reliability, and there can be little question concerning the scientific validity or
objective nature of the test.
10. Criminal Law.
Defense counsel, by failing to argue in the trial court that there was substantial and bona fide dispute of fact regarding use of
phlebotomist's declaration and affidavit in misdemeanor prosecution for driving under the influence of alcohol (DUI), and by failing to
object in writing to use of lab analyst's affidavit, waived defendant's statutory right to confront those witnesses. NRS 50.315(6),
50.320(3).
11. Criminal Law.
Trial counsel may effectively waive a defendant's statutory rights to confront witnesses whose evidence would otherwise be
presented by declaration or affidavit in a prosecution for driving under the influence (DUI). NRS 50.315(6), (7), 50.320(3).
12. Criminal Law.
Where the defendant's fundamental right of confrontation is implicated, defense counsel may not waive it over the defendant's
objection. U.S. Const. amend. 6.
Statute placing a greater burden on misdemeanor defendants than felony defendants wishing to assert statutory right to confront
witnesses whose testimony regarding blood-alcohol or breath testing could otherwise be presented by declaration or affidavit in
prosecution for driving under the influence (DUI) was a rational means, for equal protection purposes, to the legitimate government
objective of expediting less serious cases. U.S. Const. amend. 14; NRS 50.315(6), (7).
The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. U.S. Const. amend.
14.
The Equal Protection Clause requires that state laws which provide different treatment to different classes of people have a rational
basis to a legitimate governmental interest. U.S. Const. amend. 14.
Absent the involvement of a suspect classification or a fundamental right, a classification is constitutional under the Equal
Protection Clause if it bears a rational relationship to the legislative purpose sought to be effected. U.S. Const. amend. 14.
OPINION
Per Curiam:
Petitioners DeRosa and Thomas were convicted of driving while under the influence (DUI) following separate trials in the municipal
courts. Having exhausted available legal remedies, petitioners seek extraordinary relief from this court by writ of
certiorari. We consolidate these matters for disposition.
tioners seek extraordinary relief from this court by writ of certiorari.
1
We consolidate these
matters for disposition. See NRAP 3(b).
Petitioners challenge the constitutionality of NRS 50.315-50.325. Because petitioners raise
constitutional issues of statewide importance, we have elected to exercise our discretion and
entertain the instant petitions. See Zamarripa v. District Court, 103 Nev. 638, 640, 747 P.2d
1386, 1387 (1987).
FACTS
Docket No. 31666
The state charged petitioner Jeffrey DeRosa with one count of misdemeanor DUI, second
offense within seven years. A bench trial was held in the municipal court on February 26,
1997. At trial, the state introduced: (1) the declaration of the phlebotomist who drew a blood
sample from DeRosa after his arrest; (2) the affidavit of the lab evidence technician who
stored the blood sample; and (3) the affidavit of the analyst who tested the sample, attesting
that it contained .108 percent by weight of alcohol. The trial transcript reflects that the state
had previously informed DeRosa's counsel, by mail, of its intent to introduce these
documents. DeRosa orally objected to admission of the documents on Confrontation Clause
grounds. The municipal court admitted the evidence over his objection, relying on NRS
50.315-50.325. Following the trial, the municipal court convicted DeRosa of second offense
DUI.
DeRosa pursued a timely appeal of his conviction in the district court. On November 21,
1997, the district court dismissed DeRosa's appeal. DeRosa subsequently filed this original
petition for a writ of certiorari.
2

Docket No. 32319
The City of Reno (the city) charged petitioner Janice Louise Thomas with alternate
counts of misdemeanor DUI. The city also charged Thomas with careless driving. Prior to
trial, the city notified Thomas's counsel, by mail, of its intent to introduce affidavits or
declarations at trial of the phlebotomist who drew a blood sample from Thomas after her
arrest and the lab analyst who tested the sample.
__________

1
Petitioner Thomas challenges a ruling of former District Judge Mills Lane. Accordingly, we direct the clerk
of this court to amend the caption in Docket No. 32319 to conform to the caption appearing in this opinion.

2
Pursuant to an order by this court, the state filed an answer to DeRosa's petition. DeRosa has submitted a
reply to the state's answer, accompanied by a motion to file the reply. The motion is not opposed. Cause
appearing, we grant DeRosa's motion and direct the clerk of this court to file the reply provisionally submitted
on September 23, 1998.
blood sample from Thomas after her arrest and the lab analyst who tested the sample. Thomas
filed a motion objecting to the use of any such documentary evidence in lieu of live
testimony. The municipal court denied Thomas's motion to the extent that the documents
were admissible pursuant to NRS 50.315-50.325.
The case proceeded to bench trial on September 11, 1997. At trial, the city introduced the
phlebotomist's affidavit. The court overruled Thomas's renewed objection to the use of the
affidavit. The city called the lab analyst to testify and introduced her affidavit through her
testimony, which revealed that the blood sample taken from Thomas contained .197 percent
by weight of alcohol. Following the trial, the court found Thomas guilty of one count of DUI.
Thomas pursued a timely appeal of her conviction in the district court. On February 12,
1998, the district court affirmed the municipal court judgment. Thomas subsequently filed
this original petition for a writ of certiorari or, alternatively, mandamus or prohibition.
DISCUSSION
Provisions of NRS 50.315-50.325
NRS 50.315, 50.320, and 50.325 provide relatively new statutory exceptions to the hearsay
rule. The statutes permit the use of documents such as the affidavits and declaration that were
admitted in the instant cases, in lieu of live witness testimony.
NRS 50.315 provides that at criminal and administrative proceedings affidavits and
declarations of the following persons are admissible: (1) a person who obtained and tested a
breath sample for alcohol content; (2) a person who prepared a gas or chemical solution for
testing breath; (3) a person who calibrated a device for testing breath; (4) a person who drew
a blood sample; and (5) a person who received a blood or urine sample. A felony defendant
may preclude use of an affidavit or declaration at a trial by making a written objection. NRS
50.315(7). A misdemeanor defendant who wishes to compel the prosecution to produce the
witness at trial must first show a substantial and bona fide dispute concerning the facts in
an affidavit or declaration, and that it would be in the best interests of justice to have the
affiant or declarant cross-examined. NRS 50.315(6). The court may then compel the
prosecution to produce the witness. Id.
NRS 50.320 permits the use of an affidavit or declaration of a chemist or other qualified
individual who performed certain lab tests, including controlled substance and blood-alcohol
analysis. Any criminal defendant may preclude admission of an affidavit or declaration at a
trial by objecting in writing. NRS 50.320(3).
NRS 50.325 codifies general rules governing the admissibility of the statutory
affidavits and declarations. Pursuant to NRS 50.325(2), a request to have an affidavit or
declaration admitted at a trial must meet three requirements:
[T]he request must be:
(a) Made at least 10 days before the date set for the trial;
(b) Sent to the defendant's counsel and to the defendant, by registered or certified mail
by the prosecuting attorney; and
(c) Accompanied by a copy of the affidavit or declaration and the name, address and
telephone number of the affiant or declarant.
NRS 50.325(3) further provides: The provisions of this section do not prohibit either party
from producing any witness to offer testimony at trial.
Prior to 1997, only affidavits were admissible pursuant to the statutes, save NRS
50.315(4), which provided for the admission of an affidavit or declaration by a phlebotomist.
See 1997 Nev. Stat., ch. 408, 1-3, at 1418-1421; 1995 Nev. Stat., ch. 708, 1-3, at
2712-15. DeRosa was convicted prior to approval of the 1997 amendments.
The Issues Presented
Petitioners both challenge the statutory scheme on the ground that it violates their rights
under the Confrontation Clause.
3
Thomas further alleges that distinctions in the statutes
between misdemeanor and felony defendants violate the Equal Protection Clause. We reject
petitioners' arguments and conclude that use of the statutory affidavits and declaration in
these cases was constitutional.
Confrontation Clause
[Headnote 1]
The Confrontation Clause of the Sixth Amendment of the United States Constitution
specifically provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him. U.S. Const. amend. VI. The Confrontation
Clause codifies a fundamental right that applies to the states through the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).
__________

3
In her petition, Thomas only challenges the admission of the phlebotomist's affidavit. In addition to claiming
that admission of the affidavit violated her constitutional rights, Thomas further asserts that the municipal court
never admitted the affidavit into evidence. The record belies this assertion.
[Headnotes 2, 3]
At the heart of the Confrontation Clause is a preference for live testimony and
cross-examination, the greatest legal engine ever invented for the discovery of truth.'
White v. Illinois, 502 U.S. 346, 356 (1992) (quoting California v. Green, 399 U.S. 149, 158
(1970)). Thus, the concerns about the reliability of out-of-court statements are similar to the
concerns underlying the hearsay rule. See id. [W]here proffered hearsay has sufficient
guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the
Confrontation Clause is satisfied. Id. Evidence that does not fall within a firmly rooted
hearsay exception is presumptively unreliable and inadmissible for Confrontation Clause
purposes.' Idaho v. Wright, 497 U.S. 805, 818 (1990) (quoting Lee v. Illinois, 476 U.S. 530,
543 (1986)). Nevertheless, such evidence is admissible if the state rebuts the presumption by
showing that the evidence is sufficiently trustworthy. Id.; see also Ramirez v. State, 114 Nev.
550, 557-58, 958 P.2d 724, 729 (1998).
[Headnote 4]
Thus, the first step in our inquiry is to consider whether the evidence was admissible under
a firmly rooted hearsay exception. In DeRosa's case, the state asserts that the statutory
affidavits and declaration could have been admitted pursuant to the business record
exception. See NRS 51.135.
4
In Thomas's case, the city argues for application of the public
record exception. See NRS 51.155.
5
Both hearsay exceptions are firmly rooted. See Ohio
v. Roberts, 448 U.S. 56, 66 n.8 (1980).
__________

4
Nevada's statutory business record exception is codified as NRS 51.135. The statute provides:
A memorandum, report, record or compilation of data, in any form, of acts, events, conditions, opinions
or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge,
all in the course of a regularly conducted activity, as shown by the testimony or affidavit of the custodian
or other qualified person, is not inadmissible under the hearsay rule unless the source of information or
the method or circumstances of preparation indicate lack of trustworthiness.

5
Nevada's statutory public record exception is codified as NRS 51.155. The statute provides:
Records, reports, statements or data compilations, in any form, of public officials or agencies are not
inadmissible under the hearsay rule if they set forth:
1. The activities of the official or agency;
2. Matters observed pursuant to duty imposed by law; or
3. In civil cases and against the state in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of information or the method
or circumstances of the investigation indicate lack of trustworthiness.
[Headnote 5]
First, we reject the state's argument that the evidence could have been admitted under
the business record exception. As the state concedes, the proper foundation for admission of
the documents as business records was not met. Moreover, the documents are simply not
business records. The basis for the business record exception is that accuracy is assured
because the maker of the record relies on the record in the ordinary course of business
activities.' A.L.M.N., Inc. v. Rosoff, 104 Nev. 274, 285, 757 P.2d 1319, 1326 (1988)
(quoting Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir. 1981)). Here the
documents were prepared for purposes of litigation and not for use by the businesses
responsible for their preparation. Thus, they lack one of the indicia of reliability underlying
the business record exception. See id.
[Headnote 6]
Second, we reject the city's argument that the public record exception applies. To qualify
as a public record in both a traditional sense and pursuant to Nevada's statutory codification
of that exception, the record must have been prepared by a public official or agency. NRS
51.155. The admission of an affidavit or declaration pursuant to NRS 50.315-50.325 is,
however, not contingent on the status of the affiant or declarant as a public official.
Moreover, in the instant cases the documents were not prepared by public officials. Thomas's
blood was drawn by an employee of Laboratory Corporation of America (formerly Sierra
Nevada Laboratories). DeRosa's blood was drawn by an employee of Carson-Tahoe Hospital
and was received and analyzed by employees of Sierra Nevada Laboratories.
[Headnote 7]
Accordingly, we turn to the issue of whether the evidence was otherwise sufficiently
trustworthy to satisfy Confrontation Clause concerns. Evidence that does not fall within a
firmly rooted hearsay exception must possess particularized guarantees of trustworthiness'
to satisfy the Confrontation Clause. Wright, 497 U.S. at 818 (quoting Roberts, 448 U.S. at
66). Such evidence must be at least as reliable as evidence admitted under a firmly rooted
hearsay exception such that adversarial testing would add little to its reliability. Id. at 821.
[Headnote 8]
Here, we are satisfied that the statutory affidavits and declaration were sufficiently
trustworthy to be admitted over Confrontation Clause objections. Although they do not
qualify as business records, the documents do share some of the indicia of reliability
underlying the business record exception.
reliability underlying the business record exception. The documents were prepared pursuant
to NRS 50.315 and NRS 50.320 for the limited purpose of describing acts performed or
observed pursuant to the employment duties of the affiants and declarant. Such documents are
prepared routinely and record objective facts, not subjective observations. The affiants and
declarant are trained professionals whose employment depends on ensuring accuracy in the
performance of their duties. Under the circumstances of the documents' preparation, we
perceive little motive to lie or fabricate on the part of the affiants or declarant. Finally, the
usefulness of live testimony would be questionable in that the affiants and declarant may lack
specific independent recollection of the individual circumstances surrounding each routine
act.
[Headnote 9]
Moreover, the blood-alcohol test is a routine test of established reliability. See State, Dep't
Mtr. Veh. v. Bremer, 113 Nev. 805, 809, 942 P.2d 145, 148 (1997). There can be little
question concerning the scientific validity or objective nature of this test.
Accordingly, we join many other jurisdictions that have rejected challenges under the
Confrontation Clause to admission of similar statutory evidence. See, e.g., State v. Sosa, 800
P.2d 839 (Wash. Ct. App. 1990) (holding lab report of controlled substance analysis
admissible); State v. Fischer, 459 N.W.2d 818 (N.D. 1990) (holding report identifying
controlled substance admissible); State v. Hughes, 713 S.W.2d 58 (Tenn. 1986) (holding a
certificate of blood-alcohol test results admissible); State v. Smith, 323 S.E.2d 316 (N.C.
1984) (holding chemical analyst's affidavit admissible to prove blood-alcohol content); State
v. Larochelle, 297 A.2d 223 (N.H. 1972) (holding report admissible to prove blood-alcohol
content). In concluding that the state could dispense with the right of confrontation, several of
these courts have emphasized the trustworthiness of the evidence. See Sosa, 800 P.2d at 843;
Smith, 323 S.E.2d at 324-25; Larochelle, 297 A.2d at 226. Other courts have explicitly held
that the relevant statutory provisions preserved a defendant's confrontation rights but have
also concluded that the statutory evidence was particularly trustworthy. See Fischer, 459
N.W.2d at 822; Hughes, 713 S.W.2d at 61.
In addition to the indicia of trustworthiness, we note that the procedures set forth in the
statutes at issue preserve a defendant's rights by providing a defendant with an opportunity to
preclude the use of an affidavit or declaration. Any defendant may preclude the use of a
chemist's affidavit or declaration by making an objection in writing. NRS 50.320(3). A felony
defendant may similarly preclude the use of the other statutory affidavits or declarations,
admissible pursuant to NRS 50.315, by making an objection in writing.
writing. NRS 50.315(7). A misdemeanor defendant may request the court to compel the
production of an affiant or declarant, pursuant to NRS 50.315, by demonstrating a substantial
and bona fide dispute of fact and that it would be in the best interests of justice to have the
affiant or declarant cross-examined. NRS 50.315(6). Although the misdemeanor defendant is
afforded less procedural protection than the felony defendant, the right to appeal to the district
court provides additional safeguards against an abuse of discretion by the municipal or justice
court.
We recognize, however, that our holding is inconsistent with the reasoning underlying this
court's prior holding in Raquepaw v. State, 108 Nev. 1020, 843 P.2d 364 (1992). At
Raquepaw's trial, the state introduced affidavits by individuals who calibrated a
breath-analyzing device and who prepared the alcohol solution used in the device. Id. at
1021-22, 843 P.2d at 365-66. These documents were admissible pursuant to former NRS
50.315 and NRS 50.325 and remain admissible under the current versions of the statutes.
This court held that admission of the affidavits implicated Raquepaw's right of confrontation,
a personal right that could not be waived by counsel over a defendant's objection. Id. at
1022-23, 843 P.2d at 366. In the absence of any indication that Raquepaw had waived his
confrontation right, this court concluded that admission of the statutory affidavits had been
improper. Id. at 1023, 843 P.2d at 366-67.
We discern little distinction between the trustworthiness of the affidavits used in
Raquepaw and the trustworthiness of the affidavits and declaration used in the instant cases.
Thus, to the extent that our holding today is inconsistent with our holding in Raquepaw,
Raquepaw is overruled. Given the trustworthiness of the evidence, only the statutory right to
confront the witness is implicated, not the Confrontation Clause. See Sosa, 800 P.2d at
843-44.
[Headnotes 10, 11]
Trial counsel may effectively waive a defendant's statutory rights. Here, counsel for
DeRosa did so by failing to argue that there was a substantial and bona fide dispute of fact
regarding the use of the phlebotomist's declaration and the evidence technician's affidavit, and
by failing to object in writing to the use of the lab analyst's affidavit. See NRS 50.315(6);
NRS 50.320(3). Similarly, counsel for Thomas failed to argue that there was a substantial and
bona fide dispute of fact regarding the use of the phlebotomist's affidavit. Alternately, counsel
could have sought to secure the presence of an affiant or declarant by timely subpoena. See
NRS 50.325(3). If counsel acted unreasonably and petitioners were thereby prejudiced,
petitioners may pursue relief by commencing timely post-conviction actions asserting claims
that their counsel were ineffective.
counsel were ineffective. See Strickland v. Washington, 466 U.S. 668 (1984); see also Sosa,
800 P.2d at 844.
In so ruling, we do not hold that every affidavit or declaration admissible pursuant to NRS
50.320 is sufficiently trustworthy to satisfy Confrontation Clause concerns. NRS 50.320
permits the use of a chemist's affidavit in a broad category of cases not limited to the routine
and reliable blood-alcohol test, but also encompassing controlled substance analysis.
Although many tests for controlled substances are no doubt routine and reliable, it is possible
that the use of a chemist's affidavit or declaration to prove the results of a controversial or
subjective test might invoke Confrontation Clause concerns.
[Headnote 12]
Nevertheless, we are satisfied that NRS 50.320(3) preserves the defendant's constitutional
right to confront witnesses in cases where the use of an affidavit or declaration may create
concerns as to the trustworthiness of the evidence. NRS 50.320(3) explicitly provides that a
defendant may preclude admission of a chemist's affidavit or declaration by objecting in
writing. The state is then obligated to produce the affiant or declarant. If there were concerns
as to the trustworthiness of the evidence, however, we caution that compliance with
Raquepaw would be required. Where the defendant's fundamental right of confrontation is
implicated, defense counsel may not waive it over the defendant's objection. See Raquepaw,
108 Nev. at 1022-23, 843 P.2d at 366.
Equal Protection Clause
[Headnote 13]
Thomas further contends that NRS 50.315 violates the Equal Protection Clause of the
United States Constitution by placing a greater burden on misdemeanor defendants than on
felony defendants who wish to assert their right to cross-examine witnesses at trial. Pursuant
to NRS 50.315(7), a felony defendant may object in writing to the use of an affidavit or
declaration, precluding its admission and compelling the state to produce the affiant or
declarant. A misdemeanor defendant lacks this absolute statutory right, and instead must
show a substantial and bona fide dispute concerning the facts in an affidavit or declaration,
and that it would be in the best interests of justice to have the affiant or declarant
cross-examined. NRS 50.315(6).
[Headnotes 1416]
The Equal Protection Clause of the United States Constitution is essentially a direction
that all persons similarly situated should be treated alike. Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 439 (1985). The Equal Protection Clause "requires that state
laws which provide different treatment to different classes of people have a rational basis
to a legitimate governmental interest."
requires that state laws which provide different treatment to different classes of people have
a rational basis to a legitimate governmental interest. Armijo v. State, 111 Nev. 1303, 1304,
904 P.2d 1028, 1029 (1995) (citing Reed v. Reed, 404 U.S. 71 (1971)). Absent the
involvement of a suspect classification or a fundamental right, a classification is
constitutional if it bears a rational relationship to the legislative purpose sought to be
effected. Id.
Thomas's equal protection challenge lacks merit. As long as Nevada's statutory scheme
sufficiently protects the constitutional rights of a misdemeanor defendant, the fact that it
affords the misdemeanor defendant less procedural protection than a felony defendant is not
of constitutional moment. Felony defendants face a greater loss of liberty than misdemeanor
defendants do. Convicted felons face incarceration in the state prison rather than a county jail,
loss of their civil rights, more severe subsequent sentencing enhancements, longer periods of
incarceration, and higher fines. Affording misdemeanor defendants less procedural protection
than felony defendants is a rational means to a legitimate government objective. The state
may thereby expedite less serious cases, saving time and money. See Johnson v. Louisiana,
406 U.S. 356, 363-65 (1972) (rejecting an equal protection challenge to a state statutory
scheme that varied both the number of jurors in a case and the number that were required to
convict a defendant based on the seriousness of the charged offense).
CONCLUSION
Accordingly, for the reasons stated herein, we deny these petitions.
____________
115 Nev. 236, 236 (1999) Parodi v. Budetti
RAYMOND J. PARODI, an Individual, dba CONSTRUCTION BY R. PARODI AND SON,
Appellant, v. FRANK R. BUDETTI, an Individual, and LORETTA M. BUDETTI, an
Individual, Respondents.
No. 31225
August 27, 1999 984 P.2d 172
Appeal from an order of the district court awarding attorney's fees and costs pursuant to an
offer of judgment and NRS chapter 18. Ninth Judicial District Court, Douglas County; David
R. Gamble, Judge.
After jury verdict in consolidated trials of subcontractor's contract and quasi-contract
claims against contractor, its slander claim against individual defendant, and its lien
foreclosure claim, the district court awarded attorney's fees and costs to contractor.
the district court awarded attorney's fees and costs to contractor. Subcontractor appealed. The
supreme court held that: (1) as a matter of first impression, in cases where separate suits have
been consolidated into one action, the trial court must offset all awards of monetary damages
to determine which side is the prevailing party and whether or not the total net damages
exceed the $20,000 threshold under attorney fee award statute, and (2) the joint offer of
judgment was unapportioned, and thus, it could not be used to determine the prevailing party.
Kelly R. Chase, Minden, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd., Carson City, for
Respondents.
1. Costs.
District court lacked authority to award attorney's fees and costs to defendant based upon the plaintiff's
having recovered less than the oral offers of settlement made by defendant shortly before trial.
Absent an abuse of discretion, a district court's award of attorney's fees and costs will not be disturbed upon appeal.
3. Costs.
Absent a statute or rule, a court does not have the authority to issue an award of attorney's fees.
4. Costs.
Joint offer of judgment, which did not indicate whether the $20,000 was being offered to settle subcontractor's contract and
quasi-contract claims against contractor or subcontractor's slander claim against individual defendant, and which did not indicate how
much would be paid respectively by contractor and individual defendant, was unapportioned, and therefore, the joint offer could not
be used to determine the prevailing party for purposes of attorney's fees and costs awards. NRS 17.115; NRCP 68.
5. Costs.
A joint, unapportioned offer of judgment is invalid for the purpose of determining a prevailing party eligible for attorney's fees and
costs. NRS 17.115; NRCP 68.
6. Costs.
Individual defendant sued for slander was not at the time of the joint, unapportioned offer of judgment an agent of contractor sued
for breach of contract, and thus, the offer of judgment was invalid for the purpose of determining a prevailing party eligibile for
attorney's fees and costs. NRS 17.115; NRCP 68.
7. Costs.
In cases where separate and distinct suits have been consolidated into one action, the trial court must offset all awards of monetary
damages to determine which side is the prevailing party and whether or not the total net damages exceed the $20,000 threshold, for
purposes of awarding attorney's fees and costs. NRS 18.010, 18.020.
8. Costs.
Trial court could consider oral offers of settlement in determining whether discretionary attorney's fees
should be awarded and in determining the amount of fees. NRS 18.010(2)(a).
9. Mechanics Liens.
A lien claimant who recovers less than the amount of the lien is still the prevailing party for purposes of attorney's fees awards.
NRS 108.237.
10. Mechanics' Liens.
For a mandatory award of attorney's fees to a lien claimant, the amount of the award, that is, what is reasonable, is still within the
discretion of the trial judge. NRS 108.237.
OPINION
Per Curiam:
Appellant Raymond J. Parodi (Parodi) filed actions asserting claims for breach of contract,
quantum meruit and foreclosure on a mechanic's lien against respondents Frank and Loretta
Budetti (Budettis). Although the net verdict on the claims favored Parodi, the district court
awarded attorney's fees and costs to the Budettis based upon an oral offer of judgment. Parodi
contends the district court erred when it determined the Budettis to be the prevailing party for
purposes of awarding attorney's fees and costs of suit. We agree.
FACTS
Parodi contracted with the Budettis to supply labor and material for the construction of
residential homes on three separate properties, 1289 Zinfandel, 1292 Zinfandel and 1286
Chardonnay in Gardnerville, Nevada. In 1995, Parodi filed three separate actions against the
Budettis. Two actions regarding the Zinfandel properties were filed in justice court alleging
claims of breach of contract and unjust enrichment.
The remaining action involving the Chardonnay residence was filed in district court. In
addition to the contractual and quasi-contractual claims, the district court complaint also
contained a cause of action for foreclosure of the mechanic's lien which had been filed against
the Chardonnay property. The district court complaint also added claims against a Lori
Musico (Musico) for slander and interference with contractual relations. Musico was alleged
to have made numerous defamatory statements about Parodi which affected Parodi's business
relations with the Budettis. The Budettis filed a counterclaim against Parodi alleging that
Parodi breached the contracts to the detriment of the Budettis.
ing that Parodi breached the contracts to the detriment of the Budettis.
Upon motion, the justice court complaints were consolidated with the district court action.
Prior to trial, three offers of judgment were served upon Parodi. The first and second were
made in 1996 by the Budettis alone. The last was made on March 19, 1997, for the sum of
$20,000 inclusive of all fees, costs and prejudgment interest ('97 offer). This final written
offer was made by the Budettis and Musico. It did not indicate how much of the $20,000 was
to be paid by the respective defendants and was therefore unapportioned.
Trial began on July 7, 1997. Just prior to the start of the trial, the district court asked both
parties to submit one last oral settlement offer.
1
The court told both parties that it would use
the oral offers to determine which side prevailed at trial for the purpose of awarding costs and
attorney fees. The jury found that both Parodi and the Budettis breached their contracts with
respect to the Zinfandel properties. The jury assessed damages to both sides. The net verdict,
after counterclaim offsets, on 1289 Zinfandel was in favor of Parodi in the amount of
$4,306.00. The Budettis prevailed on the counterclaim regarding 1292 Zinfandel in the net
amount, over and above Parodi's contract claim, of $4,603.00. The jury also found in Parodi's
favor on the Chardonnay residence and awarded damages in the amount of $19,095.61. The
various damage awards resulted in a total net verdict in favor of Parodi in the amount of
$18,798.61. The net verdict was less favorable than the '97 offer as well as the oral offer
made by the Budettis before the commencement of the trial.
Both parties moved the district court for attorney's fees and costs claiming that they were
the prevailing party. Parodi asserted he was entitled to mandatory fees and costs under NRS
108.237, the mechanic's lien statute. Parodi also claimed fees could be awarded under NRS
18.010(2)(a) while costs were mandated by NRS 18.020. The Budettis argued that they were
entitled to fees and costs by virtue of NRCP 68 and NRS 17.115. The Budettis also cited to
NRS 18.010 and 18.020 in support of their request for attorney's fees and costs. The district
court denied Parodi's motion and granted the Budettis' motion finding that the Budettis oral
settlement offer exceeded the net award to Parodi. The Budettis were awarded costs in the
amount of $8,127.24 and attorney's fees of $30,920.00.
__________

1
By this time, Parodi had stipulated to dismiss Musico and her counterclaims from the lawsuit upon the
agreement of the Budettis that all of Musico's actions would be imputed to the Budettis on the construction
contract claims.
DISCUSSION
I. Attorney's Fees and Oral Offers of Judgment
[Headnotes 13]
Parodi asserts that the district court lacked the authority to base an award of costs and fees
upon the oral offers made shortly before the trial began. We agree. Absent an abuse of
discretion, a district court's award of fees and costs will not be disturbed upon appeal. Nelson
v. Peckham Plaza Partnerships, 110 Nev. 23, 866 P.2d 1138 (1994). However, absent a
statute or rule, a court does not have the authority to issue an award of attorney's fees. State,
Dep't of Human Resources v. Fowler, 109 Nev. 782, 858 P.2d 375 (1993). Therefore, the
district court erred in basing its award of attorney's fees and costs upon the oral negotiations
of the parties.
II. 1997 Written Offer of Judgment
[Headnote 4]
The Budettis argue that the district court's award of fees and costs can still be upheld
because it is supported by the '97 offer.
[Headnote 5]
A joint, unapportioned offer of judgment is invalid for the purpose of determining a
prevailing party under NRCP 68 and NRS 17.115. Edwards Indus. v. DTE/BTE, Inc., 112
Nev. 1025, 923 P.2d 569 (1996); Morgan v. Demille, 106 Nev. 671, 799 P.2d 561 (1990);
Ramadanis v. Stupak, 104 Nev. 57, 752 P.2d 767 (1988). There is no doubt the '97 offer was
unapportioned. The offer did not indicate whether the $20,000 was being offered to settle the
contractual claims against the Budettis or the tort claims for slander against Musico. Further,
the offer did not distinguish how much would be paid by each defendant to settle the
respective claims.
[Headnote 6]
The Budettis assert that Musico was their agent and, as such, this is a case of defendants
who are acting jointly, as one entity, similar to the defendants in Uniroyal Goodrich Tire v.
Mercer, 111 Nev. 318, 890 P.2d 785 (1995). The record does not support a finding that
Musico was considered to be an agent of the Budettis at the time Parodi rejected the '97 offer.
Musico was sued because she allegedly made false and defamatory statements about Parodi.
The Budettis were not included in these claims, nor was Musico included in the contractual
and lien claims against the Budettis. There is no indication that the Budettis stipulated to be
liable for Musico's actions at the time the offer was made or to pay any judgment that might
be entered against Musico. Thus, this case does not fall within the exception contemplated
by Uniroyal.
this case does not fall within the exception contemplated by Uniroyal. The district court could
not award fees and costs based upon Rule 68 or NRS 17.115.
III. NRS 18.010 and 18.020 Fees and Costs
The Budettis further claim the district court's award of fees and costs can be supported
under NRS 18.010 and 18.020. Since the Budettis did prevail on their counterclaim involving
1292 Zinfandel, arguably fees and costs related to that counterclaim could be awarded
pursuant to those statutes. However, as Parodi prevailed on the 1289 Zinfindel and
Chardonnay claims, Parodi, not the Budettis, would be entitled to any fees and costs under
NRS 18.010 and 18.020 with respect to those properties.
The application of NRS 18.010 and 18.020 to consolidated cases involving separate and
distinct claims is one of first impression. There are two alternative methods which could be
adopted by the court to resolve issues relating to fees and costs in such situations.
The first method would be to treat each of the separate and distinct claims individually and
determine whether fees and costs could be assessed on the basis of the monetary awards in
individual claims. The amounts awarded would then be offset against each other. The second
method would be to consider the claims as a whole and let the total net award govern the
outcome for purposes of NRS 18.010 and 18.020.
Although this issue has not arisen in a consolidated action context, the same problem has
been addressed in single action cases involving multiple counts or counterclaims. See Robert
J. Gordon Constr. v. Meredith Steel, 91 Nev. 434, 537 P.2d 1199 (1975); Peterson v.
Freeman, 86 Nev. 850, 477 P.2d 876 (1970). In Gordon and Peterson, multiple claims were
litigated in the same lawsuit. Some of the claims were worth less than the statutory cap under
NRS 18.010(2). However, the aggregate or net judgments in the case exceeded the statutory
cap. The court held that it is the value of the total judgment which controls, not the individual
claims.
[Headnote 7]
We see no reason to treat multiple lawsuits which have been consolidated into one action
differently from multiple claims filed in a single action. Therefore, we adopt the second
approach. Thus, in cases where separate and distinct suits have been consolidated into one
action, the trial court must offset all awards of monetary damages to determine which side is
the prevailing party and whether or not the total net damages exceed the $20,000 threshhold.
The trial court would then award costs to the prevailing party pursuant to NRS 18.020 and
proceed with the discretionary analysis under NRS 1S.010{1){a) to determine if attorney's
fees are warranted.
tionary analysis under NRS 18.010(1)(a) to determine if attorney's fees are warranted.
[Headnote 8]
Here, after offsetting the three monetary awards in the separate claims, the net verdict was
in favor of Parodi. Thus the award of fees and costs to the Budettis cannot be affirmed and
must be reversed. On remand, the district court must award Parodi costs as the prevailing
party. Moreover, since the net verdict does not exceed $20,000, the district court may
consider an award of attorney's fees to Parodi under NRS Chapter 18.
2

IV. Attorney's Fees Under NRS 108.237
[Headnotes 9, 10]
Parodi has also argued that he is entitled to attorney's fees pursuant to the provisions of
NRS 108.237.
3
Parodi's original lien was against the Chardonnay property in the amount of
$26,503.00. The jury found in Parodi's favor with regard to the Chardonnay property and
assessed the damages at $19,095.61. A lien claimant who recovers less than the amount of the
lien is still the prevailing party under NRS 108.237. See Close v. Isbell Construction Co., 86
Nev. 524, 471 P.2d 257 (1970). Parodi is therefore the prevailing party as to the Chardonnay
property, and an award of attorney's fees for the preparation and representation of Parodi
relating to the Chardonnay property is mandated by statute.
4

CONCLUSION
Accordingly, the award of costs and attorney's fees to the Budettis is reversed and the
matter is remanded for the district court to recalculate costs and attorney's fees in accordance
with this order.
__________

2
The district court may consider the oral offers of settlement in determining whether discretionary fees should
be awarded under the statute or the amount of fees.

3
The court shall also allow to the prevailing party reasonable attorney's fees for the preparation of the
lien and for representation of the lien claimant in the action.

4
The amount of the award, that is, what is reasonable, is still within the discretion of the trial judge. As
attorney's fees are mandated for the Chardonnay property under NRS 108.237(3), the Chardonnay property
would not be eligible for attorney's fees pursuant to NRS 18.010(2).
____________
115 Nev. 243, 243 (1999) Vinci v. Las Vegas Sands
ANGELINA VINCI, Appellant, v. LAS VEGAS SANDS, INC., a Nevada Corporation, dba
THE SANDS HOTEL AND CASINO, and TIMOTHY KEVIN DOWNEY, Respondents.
No. 30412
August 27, 1999 984 P.2d 750
Appeal from an order of the district court granting partial summary judgment, certified as
final pursuant to NRCP 54(b), in an action for negligence. Eighth Judicial District Court,
Clark County; Jack Lehman, Judge.
Casino patron indicted for conspiracy with casino employees to commit a fraudulent act in
a gaming establishment sued the casino for negligence and negligent hiring and training. The
district court granted summary judgment to casino. Patron appealed. The supreme court held
that: (1) there is no statutory or common-law duty imposed upon a casino or its employees to
warn patrons that it is a violation of state law to accept gaming chips without a marker,
overruling El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 625, 691 P.2d 436, 439 (1984), and
Hazelwood v. Harrah's, 109 Nev. 1005, 100709, 862 P.2d 1189, 1191 (1993), and (2) patron
did not establish negligent hiring and training.
Affirmed.
[Rehearing denied November 22, 1999]
Kirk-Hughes & Associates and Judith H. Braecklein, Las Vegas, for Appellant.
Beckley, Singleton, Jemison & List and Elizabeth Gonzalez, Las Vegas, for Respondents.
1. Gaming.
Casino patron indicted for conspiracy with casino employees to commit a fraudulent act in a gaming
establishment by allegedly accepting gaming chips without signing a marker did not establish negligent
hiring and training claim against casino, where patron did not present evidence that casino failed to conduct
reasonable background check of its employees, or failed to use reasonable care in the training, supervision,
and retention of its employees, or knew or should have known that some of its employees were engaged in a
conspiracy to defraud the casino. NRS 199.480, 465.070.
2. Gaming.
There is no statutory or common-law duty imposed upon a casino or its employees to warn patrons that it is a violation of state law
to accept gaming chips without a marker; overruling El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 625, 691 P.2d 436, 439
(1984), and Hazelwood v. Harrah's, 109 Nev. 1005, 100709, 862 P.2d 1189, 1191 (1993). NRS 465.101.
3. Gaming.
A casino or its employees do not have a duty to warn patrons that their conduct is unlawful.
Casino patron, who voluntarily stipulated to dismiss her trip-and-fall claim against casino while appeal was pending as to her
negligent hiring and training claim against the casino relating to a separate gaming incident, was not an aggrieved party under the
rules of appellate procedure and therefore could not appeal trial court's denial of her motion to continue the trial of her trip-and-fall
claim and trial court's ruling excluding evidence from gaming incident from the negligent hiring and training action. NRAP 3A(a).
1

OPINION
Per Curiam:
This case involves two separate incidents at the Las Vegas Sands Hotel and Casino
(Sands), where appellant Angelina Vinci sustained injuries from a trip-and-fall accident,
and then, one week later, was arrested for unlawfully accepting gaming chips without signing
a marker. Vinci and two Sands' employees were indicted on charges of conspiracy to commit
a fraudulent act in a gaming establishment under NRS 199.480 and NRS 465.070. One of the
Sands' employees eventually pled guilty to participating in a scheme to defraud the Sands.
However, the criminal charges against Vinci were ultimately dismissed.
Vinci brought a negligence action against the Sands for the trip-and-fall incident and then
amended her complaint several times to add claims for abuse of process, negligence and
negligent hiring and training against the Sands, and negligence against Sands' employees for
injuries she allegedly sustained from the gaming incident.
By granting partial summary judgment, the district court dismissed Vinci's negligence
claims arising from the gaming incident,
2
concluding that NRS 465.101 does not impose a
duty upon the Sands or its employees to warn Vinci that accepting gaming chips without
signing a marker violates a gaming law. The court certified its order as final pursuant to
NRCP 54(b), and Vinci appealed the order granting partial summary judgment. Finding no
relationship between the two incidents, the district court denied Vinci's motion to continue
the trial of her trip-and-fall claim pending the outcome of her appeal of the gaming
incident claims.
__________

1
Subsequent to oral argument the Southern Panel elected to transfer the case to the full court for decision.

2
Vinci does not appeal the dismissal of her abuse of process claim.
pending the outcome of her appeal of the gaming incident claims. The court also excluded
evidence of the gaming incident from Vinci's remaining trip-and-fall claim. In light of the
court's ruling, Vinci stipulated to dismiss her trip-and-fall claim against the Sands.
[Headnote 1]
Based upon our review of the record, we conclude that there are no issues of material fact
as to Vinci's negligent hiring and training claim. NRCP 56(c); Sawyer v. Sugarless Shops,
106 Nev. 265, 267, 792 P.2d 14, 15 (1990). There is no evidence in the record that the Sands
failed to conduct a reasonable background check of its employees, or failed to use reasonable
care in the training, supervision, and retention of its employees, to ensure their fitness for
their respective positions. See Hall v. SSF, Inc., 112 Nev. 1384, 1392, 930 P.2d 94, 98
(1996). There is also no evidence that the Sands knew or should have known that some of its
employees were engaged in a conspiracy to defraud the casino. Id. Therefore, this claim was
properly dismissed by summary judgment.
[Headnote 2]
We also conclude that there is no statutory or common-law duty imposed upon the Sands
or its employees to warn patrons that it is a violation of Nevada law to accept gaming chips
without a marker. See Warmbrodt v. Blanchard, 100 Nev. 703, 707, 692 P.2d 1282, 1285
(1984) (In the absence of a breach of duty, there can be no negligence, as a matter of law.).
The district court correctly determined that NRS 465.101 does not create such a duty.
Casinos have been held liable for injuries sustained by patrons who were arrested for, but
never convicted of, violating Nevada gaming laws. In El Dorado Hotel, Inc. v. Brown, 100
Nev. 622, 625, 691 P.2d 436, 439 (1984), a patron was arrested by the Gaming Control Board
for cheating because he continued to play a slot machine that was out of adjustment, resulting
in more frequent payoffs. Casino employees knew that the reels of the slot machine were not
working properly but made no effort to remove the machine from service or move Brown to a
new machine. Id. at 624-25, 691 P.2d at 438-39. The casino never told the Gaming Control
Board about the machine's malfunctions and other information that bore favorably on the
patron's conduct. Id. at 628, 691 P.2d at 441. This information may have affected the Gaming
Control Board's decision to arrest the patron. We concluded that there was sufficient evidence
from which a jury could find that a casino breached its duty to protect its guest from
foreseeable injuries by third persons while on its premises. Id.
In Hazelwood v. Harrah's, 109 Nev. 1005, 1007-09, 862 P.2d 1189, 1191 (1993), a patron
was detained by casino personnel, and later arrested, for attempting to cash a winning keno
ticket for which he had not paid. In that case, a casino employee told the patron that a
winning keno ticket had not been presented for payment. Id. at 1007, 862 P.2d at 1190. The
employee gave the patron permission to search for the ticket in the trash and gave the patron a
list of the winning numbers drawn in the game. Id. The employee did not inform the patron
that, under Nevada law, it is unlawful to attempt to cash the keno ticket without having paid
for the ticket. Id. We concluded that the casino was not immune from liability under NRS
465.101(1) for claims of false imprisonment, negligence and negligent misrepresentation. Id.
at 1012, 862 P.2d at 1193.
[Headnote 3]
To the extent that Brown and Hazelwood could be read to imply that a casino or its
employees have a duty to warn patrons that their conduct is unlawful, we expressly overrule
those cases.
In sum, we conclude that neither the Sands nor its employees has a duty to warn patrons
that they violate the law when they accept gaming chips without a marker. Therefore, this
claim was properly dismissed by summary judgment.
[Headnote 4]
As for Vinci's claims that the district court committed reversible error in denying her
motion to continue the trial of the trip-and-fall claim and when it excluded all evidence of the
gaming incident from her remaining trip-and-fall claim, we first note that Vinci voluntarily
stipulated to dismiss her trip-and-fall claim; therefore, the claim was never litigated to a
judgment against Vinci. Therefore, Vinci is not entitled to appeal these issues because she is
not an aggrieved party. NRAP 3A(a).
Therefore, having considered the above arguments, and all other arguments by Vinci,
3
and concluding that they are without merit, we affirm the order of the district court
granting partial summary judgment.
__________

3
Vinci appears to argue that her negligence theory is also based on the Sands employees' failure to provide
Vinci a marker before giving her the gaming chips. Having reviewed the record and the briefs, we conclude that
we need not address this issue. See Singer v. Chase Manhattan Bank, 111 Nev. 289, 292, 890 P.2d 1305, 1307
(1995) (declining to consider an argument not raised before the district court); see also State ex rel. Dept. of
Transp. v. Barsy, 113 Nev. 712, 719, 941 P.2d 971, 976 (1997) (This court need not consider assignments of
error that are not supported by relevant legal authority.).
merit, we affirm the order of the district court granting partial summary judgment.
4

____________
115 Nev. 247, 247 (1999) Schmanski v. Schmanski
DEAN SCHMANSKI, Appellant, v. KIMBERLY J. SCHMANSKI, Respondent.
No. 30278
August 27, 1999 984 P.2d 752
Appeal from a decree of divorce. Ninth Judicial District Court, Douglas County; Michael
Gibbons, Judge.
In a divorce proceeding, the district court distributed the proceeds of three trusts that held
stock in corporation. Husband appealed. The supreme court held that: (1) evidence supported
finding that the gift of funds to husband to purchase the stock placed into two of the trusts
was transmuted into community property; (2) evidence established that the funds used as
down payment for purchase of stock placed into third trust was a gift; and (3) the third trust
was husband's separate property.
Feldman, Shaw & DeVore, Stateline; Lemons Grundy & Eisenberg, Reno, for Appellant.
Allison W. Joffee, Carson City; Edward Bernard, Carson City; Leslie T. Miller, Crystal
Bay, for Respondent.
1. Divorce.
Statute providing that in a divorce action, the court must dispose of any property held in joint tenancy in
the manner set forth by statute for disposition of community property does not irrevocably transmute separate
property placed into joint tenancy into community property. NRS 125.150(1), (2).
2. Divorce.
Separate property placed into joint tenancy is presumed to be a gift to the community, for distribution purposes in a divorce action,
unless the presumption is overcome by clear and convincing evidence. NRS 125.150(2).
3. Divorce.
Evidence that stock husband originally received as a gift was deposited into account labeled Joint Account Agreement with Right
of Survivorship, that both husband and wife signed account documents, that monthly statements were addressed to both of them, and
that wallet checks and credit card for the account were accessible to both of them supported finding in divorce action that the gift was
transmuted into community property. NRS 125.150(2).
__________

4
The Honorable Robert Rose, Chief Justice, voluntarily recused himself from participation in the decision of
this appeal.
The district court's findings of fact supported by substantial evidence will not be set aside unless clearly
erroneous.
5. Evidence.
Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.
6. Husband and Wife.
Stock repurchased by husband with proceeds from sale of stock that was originally a gift to husband from husband's father could
be considered community property in a divorce action, where the opportunity to repurchase the stock was the result of husband's
employment by the corporation during the marriage, and not only because he was the son of the corporation's principal shareholder.
NRS 125.150(2).
7. Divorce.
Testimony from husband's father that his intent in giving husband funds for down payment on purchase of stock placed into a trust
was to make a gift to the trust for the benefit of husband and husband's children only, that the stock was delivered by transfer directly
to the trust, and that husband accepted the stock on behalf of the trust established that the funds for the down payment were a gift,
and thus, the trust was husband's separate property in proportion of the down payment to the debt used to acquire the stock. NRS
123.130.
8. Husband and Wife.
Promissory note evidencing debt, used along with down payment, to acquire stock that husband placed in trust was not a
community debt, where the note was non-recourse and repayment was secured solely by the stock itself, and thus, the trust was
husband's separate property in proportion of the debt to the down payment. NRS 123.130.
OPINION
Per Curiam:
Appellant Dean Schmanski and respondent Kim Schmanski were married in 1984 and
divorced in 1997. During the divorce proceedings, the distribution of the proceeds of three
trusts was at issue. The district court found that the proceeds of the Dean M. Schmanski Trust
and the Dean M. Schmanski Charitable Remainder Trust were community property, and
divided the proceeds equally between Dean and Kim. Additionally, the district court found
that the proceeds of the Dean M. Schmanski Carsonite Trust were 85.12% community
property and 14.88% Dean's separate property. Dean filed a timely appeal from the district
court's order.
Dean M. Schmanski Trust and Dean M. Schmanski Charitable Remainder Trust
In December 1983, and January 1984, prior to Dean and Kim's marriage, Dean received
two gifts of stock of Carsonite International from his father, Don Schmanski.
marriage, Dean received two gifts of stock of Carsonite International from his father, Don
Schmanski. In 1984, Carsonite International was recapitalized and the company's stock split.
Based on this split, Dean held 144,000 shares of voting stock.
In 1985, Don sold Carsonite International, and Dean's stock sold for approximately
$400,000. Dean received the money in 1985 and 1986. In 1985, he placed some of the
proceeds of the sale in a joint account with Kim in the financial institution of Kidder
Peabody. In 1986, Dean set up another account, with Dean Witter, for the remainder of the
proceeds. The paperwork accompanying the Dean Witter account is labeled Joint Account
Agreement with Right of Survivorship. Funds from the account were used to purchase
community items, and a VISA credit card and wallet checks for the account were printed in
both Kim's and Dean's names.
In 1989, Don repurchased Carsonite International, and extended an opportunity to Dean,
who was employed at Carsonite International, as well as to other employees of Carsonite, to
acquire stock in the company. Dean accepted the offer and purchased 90,000 shares of
Carsonite International stock. The money used to purchase the stock came from the joint
account at Dean Witter.
In 1994, Carsonite International underwent another recapitalization, and the stock split ten
to one. Thus, Dean owned 900,000 shares of Carsonite International stock. He subsequently
placed these shares in the Dean M. Schmanski Trust, and some shares were later transferred
to the Dean M. Schmanski Charitable Remainder Trust. The next year, the stock sold for two
dollars per share, for a total of $1.8 million.
Dean argues that the district court erred in finding that the proceeds of the Dean M.
Schmanski Trust and the Dean M. Schmanski Charitable Remainder Trust were community
property. The district court concluded that NRS 125.150 irrevocably transmutes separate
property placed in joint tenancy into community property. However, the district court also
concluded that even if NRS 125.150 does not irrevocably transmute separate property placed
into joint tenancy into community property, the separate property placed into joint tenancy is
presumed to be a gift to the community unless the presumption is overcome by clear and
convincing evidence. Gorden v. Gorden, 93 Nev. 494, 497, 569 P.2d 397, 398 (1977).
1

__________

1
In Sprenger v. Sprenger, 110 Nev. 855, 858, 878 P.2d 284, 286 (1994), this court held that transmutation of
separate property into community property must be shown by clear and convincing evidence. That standard of
proof does not apply when the owner of the separate property places the property in joint tenancy. In the latter
case, a gift to the community is presumed.
[Headnote 1]
We hold that NRS 125.150 does not irrevocably transmute separate property placed into
joint tenancy into community property. This statute provides:
1. In granting a divorce, the court:
(b) Shall, to the extent practicable, make an equal disposition of the community
property of the parties, except that the court may make an unequal disposition of the
community property in such proportions as it deems just if the court finds a compelling
reason to do so and sets forth in writing the reasons for making the unequal disposition.
2. Except as otherwise provided in this subsection, in granting a divorce, the court shall
dispose of any property held in joint tenancy in the manner set forth in subsection 1 for
the disposition of community property. . . .
2

[Headnote 2]
This court has held that when the language of a statute is plain, its intention must be
deduced from such language, and this court has no right to go beyond it. Cirac v. Lander
County, 95 Nev. 723, 602 P.2d 1012 (1979). We conclude that the plain language of NRS
125.150 does not support a determination that separate property placed into joint tenancy is
irrevocably transmuted into community property. NRS 125.150(2) requires the court to
dispose of any property held in joint tenancy in the same manner set forth in subsection 1 for
the disposition of community property. It does not mandate that joint tenancy property be
transmuted into community property, but only that it be disposed of in the same manner,
subject to the other provisions in NRS 125.150(2) regarding joint tenancy property. However,
we agree with the district court that in accordance with Gorden, separate property placed into
joint tenancy is presumed to be a gift to the community unless the presumption is overcome
by clear and convincing evidence.
[Headnotes 36]
Therefore, we must consider whether the original gifts of stock were transformed into
community property. The Dean Witter account was labeled Joint Account Agreement with
Right of Survivorship. Both Dean and Kim signed the account documents, and monthly
statements concerning the account were addressed to both of them. Further, wallet checks and
a VISA credit card for the Dean Witter account were accessible to both parties.
__________

2
NRS 125.150(2) provides for additional considerations regarding joint tenancy property that are not
dispositive here.
parties. The district court's findings of fact supported by substantial evidence will not be set
aside unless clearly erroneous. Substantial evidence is that evidence which a reasonable mind
might accept as adequate to support a conclusion. Bopp v. Lino, 110 Nev. 1246, 1249, 885
P.2d 559, 561 (1994) (citations omitted). In this case we hold that substantial evidence
supports the district court's finding that the proceeds of the Dean M. Schmanksi Trust and the
Dean M. Schmanski Charitable Remainder Trust constitute community property.
3

Dean maintains that even if this court concludes that the joint accounts were community
property, the district court erred in not granting him an unequal distribution under NRS
125.150(1)(b) or reimbursement for his contributions under NRS 125.150(2). We disagree.
Under NRS 125.150(1)(b), the district court may award an unequal disposition of community
property if it finds a compelling reason to do so. We conclude that the record supports the
district court's finding that there was no compelling reason to award an unequal disposition of
the stock proceeds, and therefore, the district court acted within its discretion in dividing the
property equally between Dean and Kim. Therefore, we affirm the district court's distribution
of the proceeds of the Dean M. Schmanski Trust and the Dean M. Schmanski Charitable
Remainder Trust.
Dean M. Schmanski Carsonite Trust
In November 1994, Don Schmanski's attorney drafted the Dean M. Schmanski Carsonite
Trust (Carsonite Trust). Don testified that his intention was to create a separate property
interest in Dean via the Carsonite Trust. His intent was to distribute his estate to his sons over
a period of time. Pursuant to the Carsonite Trust's terms, Dean is the trustee and lifetime
beneficiary of the trust, and Dean and Kim's children are the residual beneficiaries.
The Carsonite Trust corpus consisted of 756,000 shares of Carsonite International stock.
Under the terms of a Stock Sale Agreement drafted by Don's attorney, the Carsonite Trust
was required to purchase the stock for $168,000. The Agreement required the Carsonite Trust
to make an initial down payment of $25,000, with the balance of $143,000 to be paid over ten
years in annual installments of $21,000. The debt was evidenced by a promissory note
signed by Dean in his capacity as trustee for the trust.
__________

3
Furthermore, because the opportunity to purchase the stock was given to other employees, as well as Dean, it
appears that the proceeds from the 1989 purchase of stock were realized because of Dean's employment, and not
only because he was Don's son. Therefore, because the opportunity to purchase the stock was received as a result
of his employment during marriage, the proceeds could be considered community property even though the
stock was purchased with what originally was a gift before marriage.
promissory note signed by Dean in his capacity as trustee for the trust. Additionally, the sole
recourse in the event of a default on the note by the Carsonite Trust was recovery of the
Carsonite stock.
Don and his wife provided $25,000 to the Carsonite Trust so it could pay the first
installment required by the stock sale agreement. Further, Don testified that he intended to
give the Carsonite Trust annual gifts to enable it to make the payments on the note. However,
Don sold the business again in early 1995, and the Carsonite Trust sold its stock to the buyer.
Therefore, no annual payments of $21,000 were required.
The district court concluded that the $25,000 down payment for stock in the Carsonite
Trust was a gift from Don, and therefore Dean's separate property. However, the court found
that the $143,000 balance on the promissory note was a community obligation. Therefore, the
district court apportioned the Carsonite Trust as 85.12% community property, and 14.88% as
Dean's separate property.
[Headnote 7]
Dean maintains that the district court erred in determining that 85.12% of the Carsonite
Trust was community property. We agree and therefore reverse the district court's order with
respect to this issue.
NRS 123.130, regarding the separate property of spouses, provides in relevant part:
2. All property of the husband owned by him before marriage, and that acquired by him
afterwards by gift, bequest, devise, descent or by an award for personal injury damages,
with the rents, issues and profits thereof, is his separate property.
The record indicates that the funds used to purchase the stock constituting the corpus of
the Carsonite Trust were a gift from Don to the Carsonite Trust. According to American
Jurisprudence:
A valid inter vivos gift requires an intention on the part of the donor to make a present
transfer, actual or constructive delivery of the gift to the donee, and acceptance by the
donee.
38 Am. Jur. 2d Gifts 17 (1999) (footnotes omitted). We conclude that these elements are
met here. First, Don's testimony established that his intent was to make a gift to the trust for
the benefit of Dean and Dean's children only, and not to create a community property interest
in Kim. Second, the stock was transferred directly to the Carsonite Trust, and thus the gift
was delivered. Third, Dean accepted the stock on behalf of the trust.
[Headnote 8]
Furthermore, the promissory note evidencing the $143,000 debt was a non-recourse note,
and therefore Carsonite International, the creditor, could only pursue the collateral, which was
the stock in the Carsonite Trust, in the event of a default. Thus, the $143,000 was not a
community debt, and Kim produced no evidence that she would be personally liable if a
default on the promissory note occurred. Dean alone signed all of the documents for the
Carsonite Trust as trustee. Therefore, it appears that the entire Carsonite Trust was Dean's
separate property, subject to the children's interest as residual beneficiaries.
CONCLUSION
Based on the foregoing, we affirm the district court's order with respect to the Dean M.
Schmanski Trust and the Dean M. Schmanski Charitable Remainder Trust. The district
court's order distributing these trust proceeds as community property is affirmed. We reverse
the district court's order regarding the proceeds of the Dean M. Schmanski Carsonite Trust
and remand this case to the district court for a disposition of the Carsonite Trust that is
consistent with this opinion.
____________
115 Nev. 253, 253 (1999) State, Emp. Sec. v. Reliable Health Care
THE STATE OF NEVADA DEPARTMENT OF EMPLOYMENT, TRAINING AND
REHABILITATION, EMPLOYMENT SECURITY DIVISION, Appellant, v.
RELIABLE HEALTH CARE SERVICES OF SOUTHERN NEVADA, INC.,
Respondent.
No. 31631
August 27, 1999 983 P.2d 414
Appeal from a district court order granting judicial review and reversing an Employment
Security Division Board of Review ruling that temporary health care workers were eligible
for unemployment insurance benefits as employees of a temporary agency. Eighth Judicial
District Court, Clark County; Mark W. Gibbons, Judge.
Claimant who worked as a temporary health care worker sought review of a decision of
the Employment Security Division, denying unemployment benefits. The district court
reversed, and the Employment Security Division appealed. The supreme court, Maupin, J., as
a matter of first impression, held that claimant was not an employee for unemployment
insurance purposes.
Affirmed.
Rose, C. J., and Becker, J., dissented.
Crowell, Susich, Owen & Tackes, Ltd., Carson City, for Appellant.
Lionel, Sawyer & Collins and Dennis L. Kennedy and David N. Frederick, Las Vegas, for
Respondent.
1. Social Security and Public Welfare.
Neither the district court nor the appellate court shall overturn an agency's determination of an
employer-employee relationship pursuant to statute defining an employee for unemployment insurance
purposes unless it is unsupported by substantial evidence. NRS 612.085.
There is a general presumption that a worker is an employee within the purview of the unemployment insurance system. NRS
612.085.
Unemployment statutes should be liberally construed in order to advance the protective purposes of unemployment compensation
system of providing temporary assistance and economic security to individuals who become involuntarily unemployed.
Temporary health care workers who received referrals from a temporary placement agency were not employees of the agency
under the unemployment compensation statute and were ineligible to receive unemployment insurance benefits. NRS 612.085.
Temporary placement agency did not control and direct provider who worked as a temporary respiratory technician pursuant to
statute defining an employee for unemployment insurance purposes, even though agency referred provider out for work, dictated her
hourly wage, and required her to keep written time records. Agency neither trained or instructed provider, nor had any other direct
control over method and means of services she performed. NRS 612.085.
Indicia that characterize control in an employment relationship for purposes of statute defining an employee for unemployment
insurance purposes include, but are not limited to, whether the employer has the right to direct the daily manner and means of a
person's work, whether the worker is required to follow the putative employer's instructions, and whether the worker can refuse work
offered without ramification. NRS 612.085(1).
Provider who worked as a temporary respiratory technician for temporary placement agency did not work in the usual course of
agency's business pursuant to statute defining employer for unemployment insurance purposes. Agency and provider worked in two
distinct businesses, since provider was respiratory technician whose business was to directly treat patients and agency's business was in
brokering health care workers. NRS 612.085(2).
The business of brokering health care workers does not translate into the business of treating patients, and thus a temporary health
care worker does not work in the usual course of an employment broker's business within the purview of statute defining an
employee for unemployment insurance purposes.
within the purview of statute defining an employee for unemployment insurance purposes. NRS 612.085(2).
Temporary placement agency's place of business, for unemployment insurance purposes, was in its administrative office and not
all places of business where it ever referred a worker, since agency profited solely from work performed in its office. NRS 612.085(2).
A place of business for unemployment compensation purposes is a place where workers perform tasks in pursuit of company
profits. NRS 612.085(2).
Provider, who worked as a temporary respiratory technician for temporary placement agency, was an independently established
professional under statute defining an employee for unemployment insurance purposes, since provider's chosen occupational field
required an education, training, and a certification or license, and provider had option to work for other health care facilities or referral
agencies. NRS 612.085(3).
OPINION
By the Court, Maupin, J.:
SUMMARY
Whether temporary health care workers are covered employees within the purview of the
unemployment compensation statutes is an issue of first impression. This issue arose after
Mary Bolin (Bolin), a temporary health care worker employed by Reliable Health Care
Services of Southern Nevada (Reliable), filed for unemployment benefits. Thereafter, the
State of Nevada Department of Employment, Training and Rehabilitation, Employment
Security Division (ESD) conducted an investigation, and ruled that Bolin and all other
Reliable workers similarly situated (collectively hereinafter the Providers) were employees
of Reliable. An ESD Appeals Referee and the ESD's Board of Review (the Board)
subsequently upheld this determination.
The district court, however, granted judicial review and reversed the Board's decision,
concluding that the temporary health care workers were not employees pursuant to NRS
612.085, and thus were not entitled to unemployment benefits. Thereafter, ESD filed this
timely appeal, arguing that the district court erred in reversing the Board's determination
because it was supported by substantial evidence. We disagree. Accordingly, we affirm the
order of the district court.
FACTS
Most of the salient facts in this matter are not in dispute. Bolin was a trained respiratory
technician, who had one year of formal training and two years of practical experience. Bolin
possessed a current health card and some job-related equipment. Bolin had no insurance, no
business license, did not advertise, and did not consider herself to be self-employed.
In January 1994, Bolin heard from a friend that Reliable was hiring respiratory technicians.
Reliable is a temporary placement agency that refers health care workers to medical facilities.
Reliable maintains a referral list of approximately forty to fifty Providers. Bolin went to
Reliable's Las Vegas office, completed an application, and underwent a brief interview.
Shortly after Reliable screened her application, Bolin began working for Reliable. Although
Bolin had the option to work for other health care facilities or referral agencies, Bolin worked
exclusively for Reliable. Bolin worked sporadically for Reliable from January 1994 to
November 1996 and was paid $13.00 to $16.00 per hour. Reliable paid Bolin weekly and
withheld no taxes from her paycheck. Reliable was required to provide Bolin with workers'
compensation, general liability, and professional liability insurance.
Whenever Reliable wanted to refer Bolin, a Reliable representative would contact Bolin
and give her the job location and a contact person. Bolin could refuse to accept a referral, and
was allowed to trade shifts with other Providers without Reliable's permission. If Bolin opted
to accept a referral, she would go directly to the job location, usually a health care facility
such as a hospital, and her contact person would give her work instructions. Once at the
facility, Bolin would sign in and out so that Reliable could track her hours. Bolin would also
wear a Reliable identification badge bearing her picture.
In the summer of 1995, Bolin received few referrals from Reliable, and subsequently filed
for unemployment. After conducting an investigation, ESD found that Bolin and the other
Reliable respiratory therapists were Reliable's employees, and thus entitled to unemployment
benefits. This finding was affirmed by the ESD referee, and thereafter by the Board.
In making its determination, the Board applied a three-prong test pursuant to NRS
612.085, finding that the Providers were employees because they were: (1) under Reliable's
direction and control; (2) performing services in the course of Reliable's business; and (3) not
engaged in an independently established trade or occupation. The district court, however,
granted Reliable's petition for judicial review and reversed the Board's ruling, concluding that
it was unsupported by the evidence presented. Alleging that the district court erred in making
these conclusions, ESD filed this timely appeal.
DISCUSSION
[Headnotes 13]
When examining a determination of an administrative agency, we recognize the narrow
scope of our review. Specifically, we acknowledge that neither the district court nor the
appellate court shall overturn an agency's determination of an employer-employee
relationship pursuant to NRS 612.085 unless it is unsupported by substantial evidence.
1
See
State, Emp. Sec. Dep't v. Harich Tahoe, 108 Nev. 175, 177, 825 P.2d 1234, 1236 (1992). We
further acknowledge that there is a general presumption that a worker is an employee within
the purview of the unemployment insurance system. Thus, unemployment statutes should be
liberally construed in order to advance the protective purposes of Nevada's unemployment
compensation system of providing temporary assistance and economic security to individuals
who become involuntarily unemployed. See id.; see also Advanced Sports Information, Inc.
v. Novotnak, 114 Nev. 336, 339, 956 P.2d 806, 808 (1998) (noting the legislative intent
underlying the unemployment compensation statutes).
[Headnote 4]
Although we are compelled to view administrative decisions with deference and liberally
construe unemployment compensation statutes, this court will not sustain an agency
determination that is clearly erroneous. Because we conclude that the Board's determination
pursuant to NRS 612.085 was unsupported by the evidence presented and deviated from the
applicable conjunctive statutory requisites, we affirm the district court order granting judicial
review and reversing the Board's determination. In affirming the district court order, we
hereby conclude that the sole inference that can be drawn from the salient facts presented is
that the Providers were excluded from the unemployment compensation system because they
were ineligible for benefits pursuant to NRS 612.085.
NRS 612.085 presumes that a worker is an employee covered by the unemployment
compensation act unless three statutory requisites are proven:
1. The person has been and will continue to be free from control or direction over the
performance of the services, both under his contract of service and in fact;
2. The service is either outside the usual course of the business for which the service is
performed or that the service is performed outside of all the places of business of the
enterprises for which the service is performed; and
__________

1
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.'
Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 556, 779 P.2d 956, 957 (1989) (quoting State Emp.
Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)).
performed outside of all the places of business of the enterprises for which the service
is performed; and
3. The service is performed in the course of an independently established trade,
occupation, profession or business in which the person is customarily engaged, of the
same nature as that involved in the contract of service.
NRS 612.085 (emphasis added). The aforementioned statute is conjunctive in nature, and
thus the putative employer has the burden of proving all three criteria. See id. If a putative
employer fails to meet even one statutory requisite, this court will deem it an employer for
purposes of unemployment compensation.
[Headnote 5]
With regard to the first statutory requisite, the district court properly concluded that there
was no substantial evidence in the record to support the Board's finding that the Providers
acted under Reliable's direction and control. The Board's finding that Reliable controlled the
Providers was predicated upon the fact that Reliable chose which Providers were referred,
dictated each Provider's hourly wage, and required the Providers to keep written time records.
These circumstances are insufficient to support the Board's conclusion that Reliable
controlled the Providers.
[Headnote 6]
Indicia that characterize control in an employment relationship for purposes of NRS
612.085(1) include, but are not limited to, whether the employer has the right to direct the
daily manner and means of a person's work, whether the worker is required to follow the
putative employer's instructions, and whether the worker can refuse work offered without
ramification. See, e.g., Daw's Critical Care Registry, Inc. v. Department of Labor,
Employment Sec. Div., 622 A.2d 622, 631 (Conn. Super. Ct. 1992); Larson v. LIRC, 516
N.W.2d 456, 461 (Wis. Ct. App. 1994); Trauma Nurses, Inc. v. Board of Review, New Jersey
Dep't of Labor, 576 A.2d 285 (N.J. Super. Ct. App. Div. 1990); Mississippi Employment Sec.
Dep't v. PDN, Inc., 586 So.2d 838 (Miss. 1991); First Nat. Benefit Soc. v. Sisk, 173 P.2d 101,
105 (Ariz. 1946); cf. Larry's Post Co., Inc., v. Unemployment Ins. Div. Contributions Bureau,
777 P.2d 325 (Mont. 1989).
In the present matter, the record is devoid of any of the aforementioned indicia. Reliable
neither trained or instructed the Providers, nor had any other direct control over the method
and means of the services performed by the Providers. Indeed, the district court properly
noted that once the Providers had been assigned to a facility, there was virtually no contact
between the Providers and Reliable with respect to performance of their jobs. Additionally,
unlike a traditional employment relationship, the Providers were free to decline any work
offered by Reliable, to work for other employers or competing temporary agencies, and to
substitute another Provider when they were unable to work.
Providers were free to decline any work offered by Reliable, to work for other employers or
competing temporary agencies, and to substitute another Provider when they were unable to
work. In essence, Reliable was merely a conduit for payment and did not supervise, instruct,
or set work standards for its Providers. Accordingly, the district court properly concluded that
there was insufficient evidence to support the Board's finding that Reliable controlled the
Providers within the purview of NRS 612.085(1).
[Headnote 7]
With regard to the second statutory requisite, the district court properly concluded that
there was no substantial evidence in the record to support the Board's finding that the
Providers worked in the usual course of Reliable's business pursuant to NRS 612.085(2). The
Board's finding that the Providers' work was in the course of Reliable's business was
predicated upon the fact that Reliable's sole source of revenue was derived from referring
health care workers. This circumstance is insufficient to support the Board's findings.
[Headnote 8]
Despite the fact that a temporary agency profits solely from referring temporary health care
workers, we cannot ignore the simple fact that providing patient care and brokering workers
are two distinct businesses. Trauma Nurses, 576 A.2d at 291; see also Daw's, 622 A.2d 630
(holding that an entity that provides health care personnel is not engaged in the same course
of business as a health care provider who treats patients); cf. In re Hillman Inv. Co., 131 P.2d
160 (Wash. 1942) (holding construction workers were employees, in part, because without
their services the employer would not profit). Indeed, we are convinced that the business of
brokering health care workers does not translate into the business of treating patients for these
purposes, and thus a temporary health care worker does not work in the usual course of an
employment broker's business within the purview of NRS 612.085(2). Id.
Based on the foregoing analysis, it is clear that the Providers and Reliable work in two
distinct businesses. The Providers are respiratory technicians who directly treat patients. In
stark contrast, Reliable is a staffing company that profits from brokering workers; in
brokering health care workers, Reliable does not treat patients. Therefore, on these
undisputed facts, for the purposes of NRS 612.085(2), the work of the Providers was outside
the usual course of the business of Reliable as a matter of law.
[Headnotes 9, 10]
Additionally, we disagree with the Board's conclusion that a temporary placement agency's
place of business is any location where its workers have performed personal services.
where its workers have performed personal services. In fact, we are convinced that one cannot
infer from the evidence presented that Reliable's places of business expansively include all
health care facilities where it ever referred a worker. See Daw's, 622 A.2d at 635-36. A place
of business is a place where workers perform tasks in pursuit of company profits. See id.
The record before us reveals that Reliable profits solely from brokering employees, a task
likely performed by its non-Provider employees in its administrative office. Therefore,
because Reliable profits solely from work performed in its administrative office, its sole place
of business is this administrative office.
[Headnote 11]
Finally, with regard to the third statutory requisite, the district court properly concluded
that the Board erred in finding that the Providers were not professionals within the purview of
NRS 612.085(3). The Board found that the Providers were not professionals because most of
the indicia of an independent occupation were absent, as the Providers did not have a
substantial capital investment in their work, did not possess business licenses, hire
employees, or advertise their services. The mere fact, however, that members of an
occupation opt not to become entrepreneurs will not render them non-professionals. But see
Kirkpatrick v. Peet, 428 P.2d 405, 409 (Or. 1967) (equating professionalism with
entrepreneurial risk). Rather, independently established professionals pursuant to NRS
612.085(3) are workers who have an identifiable occupation characterized by education,
training, or a licensure requirement, and who work independently of their putative employer
on their own behalf. See Daw's, 622 A.2d at 639 (holding that the term professionals include
those workers who are licensed and educated); see also Vermont Securities, Inc. v. Vermont
Unemployment Comm'n, 104 A.2d 915, 917 (Vt. 1954) (holding that one engaged in an
independently established profession has a proprietary interest to the extent that he can
operate it without hindrance from any individual whatsoever.)
The evidence presented in the instant matter indicates that the Providers were
independently established professionals pursuant to NRS 612.085(3) because respiratory
therapy, the Providers' chosen occupational field, required an education, training, and a
certification or license. Moreover, and most important, although some Providers opted to
work exclusively for Reliable, other Providers chose to also work for competing temporary
agencies or directly for health care facilities. These Providers considered themselves
independent business people and operated without hindrance from Reliable. Accordingly,
because the Providers' occupational pursuit existed independently of Reliable, the Providers
were independently established professionals for purposes of NRS 612.0S5{3).
the Providers were independently established professionals for purposes of NRS 612.085(3).
CONCLUSION
We agree with the district court that there was no substantial evidence in the record to
support the Board's finding that the Providers were employees, and thereby entitled to
unemployment compensation benefits. Moreover, in doing so, we conclude that the sole
inference drawn from the undisputed facts presented is that the Providers were excluded from
unemployment compensation, as the three conjunctive statutory requisites set forth in NRS
612.085 were satisfied. Accordingly, we affirm the order of the district court.
2

Shearing, Agosti and Leavitt, JJ., concur.
Rose, C. J., with whom Becker, J., agrees, dissenting:
After reviewing the record on appeal, I conclude that the Board's determination that the
Providers were employees pursuant to NRS 615.082 was supported by substantial evidence.
Therefore, I must dissent from the majority's contrary conclusion. See State, Emp. Sec. Dep't
v. Harich Tahoe, 108 Nev. 175, 177, 825 P.2d 1234, 1236 (1992) (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).
The relationship between Reliable and the Providers is best characterized as
employer-employee. Reliable recruits, interviews, and screens each Provider applicant and, if
qualified, hires them by sending them out on referrals. Upon hire, Reliable designates the
time and location of the Provider's job and furnishes the Providers with Reliable
identification badges, and with workers compensation, general liability, and professional
liability insurance. Cf. Santiago v. Phoenix Newspapers, Inc., 794 P.2d 138, 144 (Ariz. 1990)
(employer relationship more likely where employer provides tools and a specific area to
work). Additionally, Reliable calculates the total hours worked by each Provider and issues
them a weekly paycheck. See Trauma Nurses, Inc. v. Board of Review, New Jersey Dep't of
Labor, 576 A.2d 285, 290 (N.J. Super. Ct. App. Div. 1990) (noting that continuing payment
represents some evidence of an employment relationship). Finally, Reliable controls the
work schedule of the Providers, as it may unilaterally decide to terminate them by ceasing
to refer them to health care facilities. See Santiago, 794 P.2d at 144 (The 'right to fire' is
considered one of the most effective methods of control") {citations omitted).
__________

2
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
right to fire' is considered one of the most effective methods of control) (citations omitted).
The majority insists that the aforementioned characteristics are insufficient to support the
Board's finding under NRS 612.085(1) that Reliable controlled the Providers because
Reliable did not control the manner and means of the Providers' work. Under the majority's
interpretation of NRS 612.085(1), however, the health care facility would likely be deemed
the employer because it controlled the manner and means of the Providers' daily work.
Practically speaking, this result is nonsensical because most health care facilities contract
with referral agencies to avoid incidental costs associated with having employees, such as
unemployment insurance charges. Through this contract with the health care facility, the
referral agency steps in the shoes of the health care facility for employee-related liabilities.
Likewise, the health care facility acts as Reliable's agent for the purpose of supervising the
daily work of the Providers. See In the Matter of Nurse Care Registry, Inc., 154 A.D.2d 804,
805 (N.Y. App. Div. 1989) (where the referring organization controls billing and collection
from clients, the client to whom the individuals are referred acts as an agent of the referral
agency). Accordingly, because I am convinced that the health care facility acted as Reliable's
agent in supervising the Providers, Reliable exercised sufficient control over the Providers to
be deemed their employer pursuant to NRS 612.085(1).
Additionally, I disagree with the majority's conclusion pursuant to NRS 612.085(2) that
the Providers did not work in the usual course of Reliable's business because the Providers
and Reliable performed two distinct services, treating patients and brokering workers. I see no
distinction between Reliable's and the Providers' business because the Providers'
servicetreating patientsis rendered in furtherance of Reliable's business of brokering
temporary health care professionals. See In re Hillman Inv. Co., 131 P.2d 160, 163 (Wash.
1942) (holding that employees worked in the usual course of an entity's business where their
services were rendered in furtherance of it). Indeed, Reliable's success as a referral agency is
integrally dependent upon having Providers to refer to facilities to provide patient care
services. In fact, the Providers are the essential core of Reliable's business because without
Providers to refer, Reliable would not profit, and thus would likely cease to exist. See
Santiago, 794 P.2d at 145 (considering whether worker was an integral part of the
employer's regular business). Accordingly, because the Providers comprise the essential core
of Reliable's business, I conclude that the Providers work in the usual course of Reliable's
business pursuant to NRS 612.085(2).
Several important policy considerations guide my interpretation of NRS 612.085(1)-(2).
See Keeler v. LIRC, 453 N.W.2d 902, 904 (Wis. Ct. App. 1990) (noting that factors are not
to be mechanically applied, but analyzed in light of the public policy of more fairly sharing
the economic burdens of unemployment . . .). First, the unemployment statutes are to be
liberally construed to effectuate coverage for workers who are economically dependent on
others. See Advanced Sports Information, Inc. v. Novotnak, 114 Nev. 336, 339, 956 P.2d 806,
808 (1998); Larson v. LIRC, 516 N.W.2d 456, 461 (Wis. Ct. App. 1994). Thus, only those
workers with separately established businesses, who are unlikely to be dependent on others,
should be excluded. See id.
Second, referral agencies are in the best position to allocate the costs of unemployment
insurance because they not only negotiate the contract rate with each health care facility, but
also control the hourly wage paid to each worker. Referral agencies, therefore, can allocate
the increased cost associated with unemployment insurance to the facility by increasing the
contract rate or to the worker by decreasing the wage paid to each worker. Further, since a
referral agency typically profits solely from brokering workers, it should be responsible for
allocating the costs of its workers' unemployment, rather than placing this burden on society.
Accordingly, based on the foregoing analysis, I conclude that the Board's finding that the
Providers were employees was supported by sufficient evidence. I would therefore reverse the
order of the district court.
____________
115 Nev. 263, 263 (1999) Bank of America Nevada v. Bourdeau
BANK OF AMERICA NEVADA, Appellant, v. JOSEPH BOURDEAU, Respondent.
No. 31288
August 30, 1999 982 P.2d 474
Appeal from a judgment pursuant to a jury verdict in the amount of $1.2 million for
intentional interference with prospective business relationship. Second Judicial District
Court, Washoe County; Connie J. Steinheimer, Judge.
Former bank employee sued the bank for slander, fraudulent misrepresentation and
intentional interference with prospective business relationship. The district court entered
judgment upon jury verdict in favor of former employee on his claim for intentional
interference with prospective business relationship. Bank appealed. The supreme court held
that statements made by bank's employees to investigator for Federal Deposit Insurance
Corporation {FDIC), during investigation into former employee's fitness to serve as officer
of new bank, were entitled to conditional privilege.
employees to investigator for Federal Deposit Insurance Corporation (FDIC), during
investigation into former employee's fitness to serve as officer of new bank, were entitled to
conditional privilege.
Hicks & Walt and Neil M. Alexander, Reno, for Appellant.
Kevin Mirch, Reno, for Respondent.
Kathryn R. Norcross, Washington, D.C., for Amicus Curiae Federal Deposit Insurance
Corporation.
1. Torts.
Statements made by bank's employees to investigator for Federal Deposit Insurance Corporation (FDIC),
during fact-finding investigation into former bank employee's fitness to serve as officer of new bank, were
not entitled to absolute privilege as quasi-judicial proceeding, but were entitled to conditional privilege.
Thus, statements made to investigator could not be used by former employee to prove bank's intentional
interference with prospective business relationship unless statements were made with actual malice,
knowledge that they were false or reckless disregard for truth.
2. Libel and Slander; Torts.
Any statements made to investigators for Federal Deposit Insurance Corporation (FDIC) are subject to a conditional privilege,
unless the privilege is abused.
A qualified or conditional privilege exists where a defamatory statement is made in good faith on any subject matter in which the
person communicating has an interest, or in reference to which he has a right or a duty, if it is made to a person with a corresponding
interest or duty.
A background investigation of an employee is subject to conditional privilege, and any defamatory statements therein are not
actionable unless the privilege is abused by publishing the statements with malice.
Whether a particular communication is conditionally privileged by being published on a privileged occasion is a question of law
for the court.
Once the court determines that a particular communication is conditionally privileged, the burden then shifts to the plaintiff to
prove to the jury's satisfaction that the defendant abused the privilege by publishing the communication with malice in fact. The
question goes to the jury only if there is sufficient evidence for the jury reasonably to infer that the publication was made with malice
in fact.
OPINION
Per Curiam:
Joseph Bourdeau was an at-will employee of Bank of America Nevada, who served as
manager of the North Tahoe branch. He was asked to resign after an internal review of the
branch revealed forty-seven violations of bank policies, including six that were repeat
violations, and three which exposed the bank to possible civil and criminal prosecution.
Bourdeau denied the violations and stated that the persons conducting the review did not like
him and were out to get him. He was threatened with termination and loss of his earned
bonus. However, he was allowed to resign with payment of the bonus, if he did so
immediately without talking to an attorney. Further, he was promised that the reasons for his
resignation would be kept confidential.
Subsequently, Bourdeau assembled a group of investors and raised $3.5 million to start a
new bank named Bank of Lake Tahoe. He was to be the chief executive officer and president
of the new bank. It was necessary to apply to the Nevada Division of Financial Institutions for
a state charter and to the Federal Deposit Insurance Corporation (FDIC) for approval of
federally insured accounts to be deposited in the bank. The two agencies usually conduct a
joint investigation of all the people who would be involved in any policy-making capacity
with a new bank. The investigator for the FDIC talked to several employees of Bank of
America Nevada and filed a report which recommended that Bourdeau not be approved as the
chief executive officer and president of the new bank. The report contained damaging
information about Bourdeau concerning his lending ability and the reasons why he left his job
with Bank of America Nevada.
Bourdeau and his investors sold their potential bank to an existing bank before any ruling
was made on the application. He became a branch manager for the existing bank and was
paid a salary of $50,000.00 to $60,000.00 a year. He filed suit against Bank of America
Nevada and several employees alleging, among other claims, slander, fraudulent
misrepresentation and intentional interference with prospective business relationship. The
jury found for all of the defendants on the slander and fraudulent misrepresentation claims,
but found against Bank of America Nevada on the claim of intentional interference with
prospective business relationship and awarded $1.2 million to Bourdeau as compensatory
damages. The jury also considered punitive damages, but declined to assess any such
damages against the bank. A judgment was entered in accordance with the jury verdict. Bank
of America Nevada appeals from that part of the judgment pertaining to the award of
damages for the intentional interference with prospective business relationship.
Nevada appeals from that part of the judgment pertaining to the award of damages for the
intentional interference with prospective business relationship.
Bank of America Nevada requested a jury instruction concerning an absolute or
conditional privilege as to any communications made to the FDIC, claiming the agency was
acting in a quasi-judicial capacity. The trial judge refused the instruction and gave only a
conditional privilege instruction regarding intra-bank communications.
[Headnotes 1, 2]
We must decide if statements made to an examiner during a statutorily required
fact-finding investigation by the FDIC into Bourdeau's fitness to serve as an officer of a new
bank are entitled to an absolute privilege as a quasi-judicial proceeding or to a conditional
privilege only. We hold that any statements made to FDIC investigators are subject to a
conditional privilege, unless the privilege is abused. Bourdeau must overcome the privilege
by proving the comments were made with actual malice, knowledge they were false, or
reckless disregard for whether the statements were false. Since the trial judge failed to
instruct the jury on the law of conditional privilege regarding statements made by the bank's
employees to any investigator, the jury verdict must be set aside and the case remanded for a
new trial.
We have previously held that defamatory matter published in a judicial proceeding is
absolutely privileged when the answers of the witness are relevant . . . to the subject of
inquiry, whether or not they are false or malicious. Nickovich v. Mollart, Et Al., 51 Nev.
306, 313, 274 P. 809, 810 (1929); see also Circus Circus Hotels v. Witherspoon, 99 Nev. 56,
60, 657 P.2d 101, 104 (1983). We extended the rule of absolute privilege to quasi-judicial
matters. Lewis v. Benson, 101 Nev. 300, 301, 701 P.2d 751, 752 (1985); Knox v. Dick, 99
Nev. 514, 518, 665 P.2d 267, 270 (1983).
Here, the statements were made to an investigator concerning a background check of
respondent. There was no action of a judicial character taken by either the FDIC or the
Nevada Division of Financial Institutions. Respondent withdrew his application because of
the unfavorable report and therefore no hearing on the application was ever held, nor
testimony taken under oath, nor subpoenas issued. Consequently, there was no discretionary
decision made by either of the agencies, and the statements are not protected by the absolute
privilege granted to quasi-judicial bodies.
[Headnotes 36]
However, [a] qualified or conditional privilege exists where a defamatory statement is
made in good faith on any subject matter in which the person communicating has an
interest, or in reference to which he has a right or a duty, if it is made to a person with a
corresponding interest or duty."
defamatory statement is made in good faith on any subject matter in which the person
communicating has an interest, or in reference to which he has a right or a duty, if it is made
to a person with a corresponding interest or duty. Circus Circus, 99 Nev. at 62, 657 P.2d at
105 (citations omitted). A background investigation of an employee is subject to conditional
privilege, and any defamatory statements therein are not actionable unless the privilege is
abused by publishing the statements with malice. Pierson v. Robert Griffin Investigations, 92
Nev. 605, 606, 555 P.2d 843, 843 (1976); cf. Gallues v. Harrah's Club, 87 Nev. 624, 626-27,
491 P.2d 1276, 1277 (1971).
Whether a particular communication is conditionally privileged by being published on a
privileged occasion is a question of law for the court; the burden then shifts to the
plaintiff to prove to the jury's satisfaction that the defendant abused the privilege by
publishing the communication with malice in fact. The question goes to the jury only if
there is sufficient evidence for the jury reasonably to infer that the publication was
made with malice in fact.
Circus Circus, 99 Nev. at 62, 657 P.2d at 105 (citations and footnote omitted).
Here, the bank had an interest and duty to cooperate with the examiner to ensure that
officers of a new bank are qualified and experienced. The same interest applies to the
agencies that by law are required to investigate proposed officers of a new bank.
The trial judge erred by not instructing the jury that the statements made to the bank
examiner were conditionally privileged as a matter of law and cannot be used to prove an
interference with a prospective business relation claim unless the privilege is abused by bad
faith, malice with spite, ill will, or some other wrongful motivation, and without belief in the
statement's probable truth. See Pierson, 92 Nev. at 606, 555 P.2d at 843; cf. Gallues, 87 Nev.
at 626-27, 491 P.2d at 1277.
Accordingly, by reason of the foregoing, we reverse that portion of the judgment
pertaining to Bourdeau's claim for intentional interference with prospective business
relationship and remand the case for a new trial on the issue of conditional privilege as it
relates to the intentional interference with prospective business relationship claim. We affirm
the judgment in all other respects.
____________
115 Nev. 268, 268 (1999) Advanced Countertop Design v. Dist. Ct.
ADVANCED COUNTERTOP DESIGN, INC., a Nevada Corporation, Petitioner, v. THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for
THE COUNTY OF WASHOE, and THE HONORABLE STEVEN R. KOSACH,
District Judge, Respondents, and NATHANIEL TENNEY, Real Party in Interest.
No. 33660
September 23, 1999 984 P.2d 756
Original petition for a writ of mandamus or prohibition challenging a district court order
denying petitioner's motion to dismiss an intentional tort claim.
Injured employee brought action against his employer seeking damages for negligence,
negligence per se and intentional tort. The district court dismissed negligence claims, but
refused to dismiss the intentional tort claim. Employer filed petition for writ of mandamus or
prohibition. The supreme court held that employee's acceptance of State Industrial Insurance
System (SIIS) award destroyed his common law right of action for intentional tort.
Petition for writ of mandamus granted.
Lance R. Van Lydegraf, Reno, for Petitioner.
William Patterson Cashill, Reno, for Real Party in Interest.
1. Mandamus.
Although the supreme court generally declines to consider writ petitions that challenge district court
orders denying motions to dismiss or for summary judgment, it may exercise its discretion when no factual
disputes exist and the district court is obligated to dismiss an action pursuant to clear authority under a
statute or rule. The supreme court may also exercise its discretion when an important issue of law needs
clarification, and considerations of sound judicial economy and administration militate in favor of granting
the petition.
Compensation from State Industrial Insurance System (SIIS) is the sole remedy an injured employee has against his employer
when the injury results from an accident arising out of and in the scope of his employment. NRS 616A.020(1), 616B.612(3).
Injured employee's acceptance of State Industrial Insurance System (SIIS) award for permanent partial disability acted as an accord
and satisfaction of common law rights, thereby destroying employee's common law right of action against his employer for intentional
tort. NRS 616A.020(1), 616B.612(3).
An employer who commits an intentional tort upon an employee cannot claim that the intentional act resulted in an
accidental injury, so as to be immune from tort liability under exclusive remedy provisions of workers'
compensation statutes.
cannot claim that the intentional act resulted in an accidental injury, so as to be immune from tort liability
under exclusive remedy provisions of workers' compensation statutes. NRS 616A.020(1), 616B.612(3).
An injured employee making a statutory workers' compensation claim is charged with knowledge of the statutory scheme's
provisions, including its exclusive remedy provision. NRS 616A.020(1), 616B.612(3).
Before Young, Agosti and Leavitt, JJ.
OPINION
Per Curiam:
This original petition for a writ of mandamus or prohibition challenges the district court's
refusal to dismiss an intentional tort claim against petitioner. By order entered February 4,
1999, we stayed the underlying proceedings and called for an answer. Having reviewed the
petition and answer, we conclude our intervention in this matter by way of extraordinary
relief is warranted.
The facts in the underlying case are not in dispute. Real party in interest Nathaniel Tenney
was injured on April 1, 1996, his first day at work for petitioner Advanced Countertop Design
(ACD). As a result of Tenney's accident while using an unshielded table saw, he lost part of
three fingers on his right hand. Tenney submitted a workers' compensation claim, which the
State Industrial Insurance System (SIIS) accepted. In February 1997 SIIS granted Tenney a
permanent partial disability (PPD) award and closed his claim. Tenney, through counsel,
accepted and received a lump sum payment of more than $19,000 in full settlement of his
claim.
[Headnote 1]
In May 1997 Tenney filed a complaint against ACD seeking damages for negligence,
negligence per se and intentional tort (specifically, for intentional, knowing and willful failure
to provide safeguards for the table saw Tenney used). The district court dismissed the two
negligence claims, but refused to dismiss the intentional tort claim. This writ petition
followed. Although we generally decline to consider writ petitions that challenge district
court orders denying motions to dismiss or for summary judgment, we may exercise our
discretion when no factual disputes exist and the district court is obligated to dismiss an
action pursuant to clear authority under a statute or rule. Smith v. District Court, 113 Nev.
1343, 1345, 950 P.2d 280, 281 (1997). Additionally, this court may exercise its discretion
when, as here, an important issue of law needs clarification, and considerations of sound
judicial economy and administration militate in favor of granting the petition.
of sound judicial economy and administration militate in favor of granting the petition. Id.
[Headnote 2]
The law is well-established that compensation from SIIS is the sole remedy an injured
employee has against his employer when the injury results from an accident arising out of and
in the scope of his employment. Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1350,
1353, 951 P.2d 1027, 1029-30 (1997); see NRS 616A.020(1) (The rights and remedies
provided in chapters 616A to 616D, inclusive, of NRS for an employee on account of an
injury by accident sustained arising out of and in the course of the employment shall be
exclusive, except as otherwise provided in those chapters, of all other rights and remedies . . .
at common law or otherwise, on account of such injury.); NRS 616B.612(3) (the employer
or any insurer of the employer is relieved from other liability for recovery of damages or other
compensation for those personal injuries unless otherwise provided by the terms of chapters
616A to 616D, inclusive).
We have consistently held that an injured employee's acceptance of a final SIIS award acts
as an accord and satisfaction of common law rights, thereby extinguishing any common law
right the employee might have had against his employer. Arteaga v. Ibarra, 109 Nev. 772,
776, 858 P.2d 387, 390 (1993) (citing Stevenson v. Kollsman Mineral & Chem., 91 Nev. 529,
539 P.2d 463 (1975); First Nat'l Bk. v. Dist. Ct., 75 Nev. 77, 82, 335 P.2d 79, 82 (1959)).
[Headnote 3]
Tenney acknowledges this general principle. Because the exclusive remedy provisions of
Nevada's workers' compensation statutes do not shield employers from liability for their
intentional torts, however, Tenney contends Arteaga must mean that acceptance of a lump
sum PPD award disposes of the workers' compensation claim and any negligence claim, but it
does not bar an intentional tort claim. We disagree.
[Headnote 4]
This court has recognized that employers do not enjoy immunity, under the exclusive
remedy provisions of the workers' compensation statutes, from liability for their intentional
torts. Workers' compensation covers only injuries caused by accident arising out of and in the
course of employment. See NRS 616A.020(1). An employer who commits an intentional tort
upon an employee cannot claim that the intentional act resulted in an accidental injury.
Barjesteh v. Faye's Pub, 106 Nev. 120, 122, 787 P.2d 405, 406 (1990).
No conflict exists between Arteaga and Barjesteh. In each case, the injured employee was
permitted only one recovery. The Barjesteh employee was allowed to pursue her common law
intentional tort claim only because she had not elected to recover for an accidental injury.
1
As this court explained:
the district court erred in ruling that [Barjesteh] has made a binding election of
remedies by receiving SIIS benefits. We have previously held that until a final
disposition of an SIIS claim is made, the injured employee is not precluded from
maintaining a common law action against her employer notwithstanding the employee's
acceptance of interim workmen's compensation payments.
Barjesteh, 106 Nev. at 122, 787 P.2d at 406.
In other words, applying Arteaga's analysis, the Barjesteh employee had not entered into
an accord and satisfaction of her common law rights, and her right of action had not been
merged by accord with a compensation award accepted in its place; consequently, the
employee's common law right of action was not destroyed. See Arteaga, 109 Nev. at 776, 858
P.2d at 390. In contrast, Tenney was fully and completely compensated by SIIS for his injury;
consequently, his common law right of action was destroyed, merged by accord with the
compensation award he accepted in its place. Id.
In addition, to be eligible for the PPD award, Tenney was required to prove he sustained
an accidental injury. See NRS 616C.490 (an employee who is injured by an accident arising
out of and in the course of employment is entitled to receive the compensation provided for
permanent partial disability). Having accepted benefits for an accidental injury, Tenney
cannot now change his position, assert the injury was not accidental, and pursue an
intentional injury claim. See Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 549, 396 P.2d
850, 854 (1964) ( Under the doctrine of judicial estoppel a party may be estopped merely by
the fact of having alleged or admitted in his pleadings in a former proceeding the contrary of
the assertion sought to be made.' ) (quoting 31 C.J.S. Estoppel 121, at 649).
__________

1
The injured employee in Barjesteh alleged in her complaint that she was injured when her employer
intentionally and violently closed her arm in a refrigerator door. Although the employee had submitted a
workers' compensation claim and had received some temporary total disability payments, this court held she had
not made a binding election of remedies that would preclude her from pursuing the tort action because there had
been no final disposition of her SIIS claim; the claim remained open, with no final award tendered or accepted.
Barjesteh v. Faye's Pub, 106 Nev. 120, 121, 787 P.2d 405, 406 (1990).
[Headnote 5]
Finally, Tenney's arguments that he did not know he was waiving his common law rights,
and that public policy favors his position, are not persuasive. An injured employee making a
statutory workers' compensation claim is charged with knowledge of the statutory scheme's
provisions, including its exclusive remedy provision. See First Nat'l Bk., 75 Nev. at 82, 335
P.2d at 82; NRS 616A.020(1); NRS 616B.612(3). And allowing Tenney to seek a workers'
compensation award, accept it, and follow it with a common law action against his employer
would be in direct conflict with the intent and spirit of workers' compensation, not in
furtherance of it. See id. at 83, 335 P.2d at 82.
Although Tenney could have filed an intentional tort action instead of accepting a workers'
compensation award for his injury, no law supports the district court's decision that he could
do both. The district court was obligated to grant ACD's motion for summary judgment and
dismiss the tort action because there are no genuine issues of material fact, and ACD was
entitled to judgment as a matter of law. See NRCP 56(c). We conclude the district court
manifestly abused its discretion in refusing to dismiss Tenney's tort claim.
Accordingly, we grant this petition. See NRS 34.160; NRS 34.170; Round Hill Gen. Imp.
Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981) (a writ of mandamus is available to
control an arbitrary or capricious exercise of discretion). The clerk of this court shall issue a
writ of mandamus compelling the district court to grant petitioner's motion to dismiss the
intentional tort claim against petitioner. In light of this opinion, we vacate our order staying
all proceedings in the district court.
____________
115 Nev. 273, 273 (1999) Mortensen v. State
RONALD LAWRENCE MORTENSEN, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 30855
RONALD LAWRENCE MORTENSEN, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 33293
September 27, 1999 986 P.2d 1105
Consolidated appeals from a judgment of conviction, pursuant to a jury verdict, of one
count of first-degree murder with the use of a deadly weapon and from a denial of a motion
for a new trial based on newly discovered evidence. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Defendant, a police officer, was convicted in the district court of first-degree murder with
the use of a deadly weapon, and his subsequent motion for a new trial based on newly
discovered evidence was denied. Defendant appealed. The supreme court, Agosti, J., held
that: (1) statute generally barring admission of evidence of other crimes, wrongs or acts does
not apply only to the accused, but also to witnesses; (2) any prejudice caused by prosecution's
late delivery of firearm expert's report was harmless; (3) the expert's testimony that vehicle
from which shots were fired moved during the shooting was admissible; (4) State's failure to
acquire truck and clothing of a witness defendant claimed was the shooter and provide them
to defendant before they could be altered did not violate due process; and (5) newly
discovered evidence did not warrant new trial.
Affirmed.
Frank J. Cremen, Las Vegas, for Appellant.
and James Tufteland and William T. Koot, Chief Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Statute generally barring admission of evidence of other crimes, wrongs or acts does not apply only to the
accused, but also to witnesses. Plain language of the statute uses the term person, rather than defendant,
or accused. NRS 48.045(2).
2. Criminal Law.
Admissibility of prior bad acts evidence is within the discretion of the trial court, whose decisions will not be disturbed on appeal
unless manifestly wrong. NRS 48.045(2).
3. Statutes.
Words in a statute should be given their plain meaning unless this violates the spirit of the act.
4. Criminal Law.
Evidence of prior bad acts of a State witness who murder defendant claimed was the shooter, primarily two incidents reported to
the internal affairs division of the police department, was not admissible to show a pattern of hot-headed, impulsive and brutish
behavior. By offering the evidence for that purpose, defendant was impermissibly attempting to show that the witness acted in
conformity with that type of behavior on the night of the shooting. NRS 48.045(2).
5. Criminal Law.
Probative value, on the issue of identity, of prior bad acts evidence regarding a State witness, who murder defendant claimed was
the shooter, was marginal at best and was outweighed by its prejudicial effect. Evidence consisted primarily of two incidents reported
to the internal affairs division of the police department. NRS 48.045(2).
6. Criminal Law.
Application of statute generally barring admission of prior bad acts evidence, so as to preclude murder defendant from introducing
two incidents reported to the internal affairs division of the police department regarding a State witness who defendant claimed was the
shooter, did not violate defendant's constitutional confrontation or due process rights. Defendant was able to effectively cross-examine
witness, and witness's prior bad acts did not exculpate defendant. U.S. Const. amends. 6, 14; NRS 48.045(2).
7. Witnesses.
Excluding evidence of prior bad acts of a State witness who murder defendant claimed was the shooter, primarily two incidents
reported to the internal affairs division of the police department, was not an abuse of discretion insofar as the evidence was offered to
impeach the witness. Witness's credibility was more than adequately litigated before the jury. NRS 48.045(2).
8. Criminal Law.
Any prejudice caused by prosecution's late delivery of expert's report, indicating that vehicle from which shots were fired moved
during the shooting, was harmless in murder prosecution, and thus, mistrial was not warranted. Movement of the truck was not
determinative of the ultimate verdict, five eyewitnesses either directly or indirectly identified defendant as the shooter, and defendant
was afforded the opportunity to cross-examine the expert regarding the report, and did so.
9. Criminal Law.
Denial of a motion for mistrial can only be reversed where there is a clear showing of an abuse of discretion.
10. Criminal Law.
Admissibility of expert testimony is within the discretion of the trial court.
11. Criminal Law.
Expert's testimony, that vehicle from which shots were fired moved during the shooting, was not speculative or uninformed, so as
to be inadmissible in murder prosecution. Nothing suggested that expert made any unsubstantiated assumptions in the conduct of his
experiments, which were undertaken within months of the shooting, and it was undisputed that he was an expert in firearms
examination and was competent to give testimony regarding bullet trajectories.
Defendant did not show that the State acted in bad faith when it failed to acquire the truck and clothing of
a witness defendant claimed was the shooter and provide them to defendant before they could be altered, so
as to prove a violation of defendant's due process rights. State did not consider witness a suspect when it
obtained the truck, nor did it know that defendant would contend that the witness was the shooter, and while
justices' court, at a bail hearing, requested the State to ask the witness not to destroy evidence, the justices'
court correctly did not have jurisdiction over the witness's property. U.S. Const. amend. 14.
To establish a violation of due process resulting from the State's loss or destruction of evidence, a defendant must demonstrate
either (1) that the state lost or destroyed the evidence in bad faith, or (2) that the loss unduly prejudiced the defendant's case and the
evidence possessed an exculpatory value that was apparent before the evidence was destroyed. U.S. Const. amend. 14.
Murder defendant failed to demonstrate that he was unduly prejudiced by any alterations made to the truck or clothing of a witness
he claimed fired the fatal shots from the truck, so as to prove a due process violation in State's failure to acquire the truck and clothing
and provide them to defendant before they could be altered. Custom bench seat present in the truck on the night of the shooting, while
removed and sold by witness, was reacquired and placed in the truck for the trial, and there was nothing, other than defendant's
contention, to suggest that powder residue ever existed or was washed out of the witness's clothing. U.S. Const. amend. 14.
Mere assertions by defense counsel that an examination of evidence will potentially reveal exculpatory evidence does not
constitute a sufficient showing of prejudice to establish a due process violation in State's loss or destruction of evidence.
16. Criminal Law.
Newly discovered evidence, that a State witness/police officer had explained his alleged behavior in coercing a female arrestee to
perform an illicit sex act by stating that he was evil or an evil man did not warrant a new trial for a murder defendant who claimed
that the witness was the shooter, and that after the shooting the witness had described himself as evil. Statement had no connection
to the circumstances of the murder, it neither exculpated defendant nor inculpated witness, its admissibility was questionable, and the
arrestee had changed her story about her arrest several times.
17. Criminal Law.
To establish a claim for a new trial based on newly discovered evidence, the defendant must show that the evidence is: newly
discovered; material to the defense; such that even with the exercise of reasonable diligence it could not have been discovered and
produced for trial; noncumulative; such as to render a different result probable upon retrial; not only an attempt to contradict, impeach,
or discredit a former witness, unless the witness is so important that a different result would be reasonably probable; and the best
evidence the case admits.
18. Criminal Law.
Grant or denial of a new trial based on newly discovered evidence is within the discretion of the trial court and will not be reversed
on appeal absent an abuse of that discretion.
19. Criminal Law.
Newly discovered evidence, that a third party/police officer had heard a State witness/police officer refer
to himself as evil did not warrant a new trial for a murder defendant who claimed that the witness was the
shooter, and that after the shooting the witness had described himself as evil. Statement had no connection
to the circumstances of the murder, it neither exculpated defendant nor inculpated witness, and its
admissibility was questionable.
20. Criminal Law.
Newly discovered evidence, a letter and two notes written by the State's firearms expert, did not justify a new trial in a murder
prosecution. Even if the letter showed that the expert provided confusing testimony, introduction of the letter at a new trial would
simply have been an attempt to discredit the expert, and the notes, even if they indicated the possible existence of another gun, would
not have rendered a different result probable on retrial, as defendant testified that his gun was the murder weapon.
21. Criminal Law.
Newly discovered evidence, the testimony of a police officer before a federal jury, stating that an officer who was a State witness
in defendant's murder trial had mentioned several times the fact about going and doing a drive-by or something like that nature, did
not warrant a new trial, despite defendant's theory that the witness was the shooter. All of the eyewitnesses testified that the passenger
in a truck was the actual shooter, and it was undisputed that defendant was the passenger, and it was undisputed that the murder
weapon was defendant's off-duty gun.
OPINION
1

By the Court, Agosti, J.:
On December 27, 1996, Ronald Mortensen (Mortensen), an officer with the Las Vegas
Metropolitan Police Department (LVMPD), celebrated his thirty-first birthday at a Las
Vegas drinking establishment. Chris Brady (Brady), another LVMPD officer, was among
the revelers.
Around midnight, the celebration ended. Mortensen's wife went home, while Mortensen
and Brady left in Brady's blue 1974 Dodge pickup truck. Brady and Mortensen then drove
away. Brady drove and Mortensen occupied the passenger's seat. Prior to their departure,
Mortensen gave his wife his fanny pack, but removed from it his off-duty weapon, a .380 Sig
Sauer gun.
Brady and Mortensen ultimately drove into an alley abutting 537 McKellar Circle, an area
known for gang activity, where a group of people had gathered.
__________

1
This court previously denied consolidation of these appeals. After argument and complete briefing, the court
has determined that these appeals be consolidated for the purpose of disposition only. See NRAP 3(b).
group of people had gathered. It is undisputed that the passenger side of Brady's truck faced
the group. Witnesses saw a handgun appear in the passenger's window, after which six shots
were fired. One man, Daniel Mendoza, was fatally wounded. The truck then pulled away and
left the area.
Following the incident, Mortensen and Brady went to PT's Lounge in Las Vegas, a bar
frequented by off-duty police officers. Later, Brady drove Mortensen home.
Brady claims that the next morning, Saturday, he discovered Mortensen's Sig Sauer in the
pickup. Brady removed the bullets from the magazine and the chamber, placed the gun in his
bathroom cabinet and went fishing. On Sunday morning, Brady contacted his father, who was
also a police officer. Brady, accompanied by his father, then drove to the police station, where
Brady gave a statement identifying Mortensen as the shooter.
2
Brady also turned over
Mortensen's Sig Sauer. That evening, Mortensen was arrested. The State treated Brady as a
witness rather than as an accessory. Thus, he was never arrested or charged in connection
with his role in the affair.
During the investigation, the police went to Brady's apartment to retrieve the truck and
Brady's gun, a .38 Taurus revolver. The truck was towed to a crime lab where the passenger
side was examined by a criminalist. The truck was returned to Brady a day or two later.
Mortensen's gun was checked for fingerprints. Two identifiable prints left by Mortensen were
recovered from the slide of the weapon.
On January 15, 1997, Mortensen appeared at a bail hearing before a justice of the peace.
Mortensen's counsel made an oral request for Brady's truck and clothing. Although noting
that it had no jurisdiction over Brady's property, the court requested that the State ask Brady
not to destroy any evidence.
On January 23, 1997, Mortensen was arraigned in the district court. At that hearing,
Mortensen made another oral request for Brady's truck and clothing. The court told
Mortensen that he would have to obtain those items through his own resources. Sometime
within the next few weeks, Mortensen was able to obtain both the truck and the clothing. The
clothing had been laundered. The custom seat that had been in the truck on the night of the
shooting had been removed and sold. The truck had been repainted, the tint had been
removed from the side windows, and the clutch and carburetor had been adjusted.
At a pre-trial hearing, on April 24, 1997, the State claimed that no additional discovery
was forthcoming.
__________

2
Brady claims that he contacted the police, after learning from reading newspaper accounts of the incident,
that someone had been shot.
On April 28, 1997, the first day of trial, Mortensen received copies of two reports from
Torrey Johnson (Johnson), the State's firearms expert. The first report, dated April 25,
1997, indicated that, on February 18, 1997, Johnson had examined Brady's truck and
concluded that a dent in the floorboard was not made by a bullet strike. The report also
indicated that on April 23, 1997, Johnson examined two bullet strikes at the murder scene,
one on an electrical box and another on a laundry room doorway, and concluded that the
laundry room bullet had been travelling slightly upwards. Johnson also concluded that both
bullets came from Mortensen's gun. The second report, dated April 28, 1997, indicated that
on April 25, 1997, Johnson examined a piece of sheet metal from the murder scene and
concluded it had been struck by a bullet from Mortensen's gun which was travelling
perpendicular to the surface of the sheet metal.
The State called several eyewitnesses at trial. Five witnesses gave similar descriptions of
the shooter, describing him as a large, white male who wore glasses and was the passenger in
the truck. Two of those witnesses specifically identified Mortensen as the shooter, and one of
those witnesses stated that the truck moved during the shooting.
It was established that Mortensen was six feet, two inches tall and weighed 220 pounds,
while Brady was five feet, nine inches tall and weighed 165 pounds. It was also established
that Mortensen wore glasses on the night of the shooting.
No witnesses identified Brady or anyone else as the shooter.
Brady was called as a State's witness. He testified that the center console of the custom
truck seat was lowered at the time of the shooting, and therefore it would have been
impossible for him to reach across the truck cab in order to fire a gun out of the passenger
window. However, Brady did admit that he drew his weapon, a Taurus revolver, immediately
after Mortensen drew his gun. Brady claimed he pointed the Taurus out the passenger
window, but did not fire. Brady testified that he pressed down on the truck's accelerator, after
shooting commenced.
At this point in the trial, Mortensen sought to question Brady about two prior incidents,
which had resulted in an internal affairs investigation of Brady.
3
The incidents resulted in, at
most, minor internal corrective action.
__________

3
At oral argument, the parties clarified the two incidents which prompted the internal affairs investigation of
Brady. In the first, Brady allegedly pulled a gun on a motorist who refused to stop. In the second, Brady
allegedly knocked down a person who refused to leave a casino.
In the parties' briefs, Mortensen alleged that Brady was involved in eight incidents in the summer of 1995
which resulted in internal affairs complaints. In one incident, Brady allegedly put a gun to the head of a man who
looked at Brady in a peculiar way.
internal corrective action. The court sustained the State's objection to this line of inquiry.
The State called Johnson as an expert witness. Johnson identified Mortensen's Sig Sauer as
the murder weapon. He testified that the Sig Sauer must have been fired from outside the
truck cab, due to the ejection characteristics of the gun, and the fact that all the shells were
found on the ground at the crime scene. Johnson also gave an opinion with regard to the
trajectories of the bullets fired at the crime scene. Specifically, Johnson analyzed three bullet
strikes: one located on a piece of sheet metal; another on a metal electrical box; and a third
through a glass window and into a laundry room door. Johnson testified that in his opinion,
based on the location of the bullet strikes, the gun moved at least six feet during the shooting.
Shortly thereafter, Mortensen moved for a mistrial, claiming that the State failed to provide
notice that Johnson would testify that the truck moved while the shots were fired. The motion
was denied.
Mortensen testified in his own defense. He admitted he was in the passenger seat on the
night of the shooting, but claimed that Brady was the shooter. Mortensen testified that Brady
suddenly retrieved the Sig Sauer from underneath Mortensen's buttocks, reached across the
cab of the truck and fired at the group of people outside. Then, according to Mortensen,
Brady indicated he would dispose of the gun, and that Brady placed it in a secret
compartment in the center section of the custom truck seat. Mortensen also testified that he
asked Brady why he had fired the shots and that Brady then called himself evil.
Brady's truck was introduced into evidence. Although Brady had removed the custom seat
after the shooting, the defense was able to reacquire the same seat and place it in the truck for
demonstration purposes at trial. Members of the jury observed the truck with the custom seat
in place and were able to sit inside the truck.
On May 14, 1997, the jury found Mortensen guilty of first-degree murder with the use of a
deadly weapon. He was sentenced to two consecutive terms of life imprisonment without the
possibility of parole.
DISCUSSION
Applicability of NRS 48.045(2)
Mortensen argues that Brady's prior bad acts, primarily two incidents reported to the
internal affairs division of the police department, should have been admitted notwithstanding
NRS 48.045(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.
ble 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.
(Emphasis added.)
[Headnote 1]
Mortensen asserts that NRS 48.045(2) applies only to an accused and not to a witness; that
the prior bad acts tend to identify Brady as the shooter; and that the prior bad acts show a
pattern of hot-headed, impulsive and brutish behavior by Brady. We hold that no abuse of
discretion was shown with regard to the district court's exclusion of references to Brady's
prior bad acts.
[Headnote 2]
The admissibility of prior bad acts evidence is within the discretion of the trial court,
whose decisions will not be disturbed on appeal unless manifestly wrong. Crawford v.
State, 107 Nev. 345, 348, 811 P.2d 67, 69 (1991).
[Headnote 3]
The plain language of NRS 48.045(2) uses the term person, rather than defendant, or
accused. In Nevada, words in a statute should be given their plain meaning unless this
violates the spirit of the act. McKay v. Board of Supervisors, 102 Nev. 644, 648, 730 P.2d
438, 441 (1986).
Had the legislature intended NRS 48.045(2) to apply only to an accused, the word
person would not have been used. For example, NRS 48.045(1) specifically uses the terms
accused, NRS 48.045(1)(a), victim, NRS 48.045(1)(b) and witness, NRS 48.045(1)(c).
This choice of words demonstrates that, had the legislature intended NRS 48.045(2) to apply
only to an accused, it would have clearly stated so.
4

Moreover, the identity exception to NRS 48.045(2) generally involves situations where a
positive identification of the perpetrator has not been made, and the offered evidence
establishes a signature crime so clear as to establish the identity of the person on trial. See
Canada v. State, 104 Nev. 288, 756 P.2d 552 (1988); Mayes v. State, 95 Nev. 140, 591 P.2d
250 (1979).
5

__________

4
In support of his argument, Mortensen cites to Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (1995),
overruled on other grounds by State v. Sixth Judicial District Court, 114 Nev. 739, 964 P.2d 48 (1998), and
Crawford, 107 Nev. at 345, 811 P.2d at 67. However, neither Cipriano nor Crawford stands for the proposition
that the exclusion of prior bad acts applies only to an accused.

5
The incidents to which Mortensen refers took place well over a year prior to the commission of this offense.
The trial court acted well within its
[Headnotes 47]
NRS 48.045(2) clearly states that evidence of other acts is not admissible to prove the
person acted in conformity with those acts. Yet, by offering the evidence to establish that
Brady is hot-headed, impulsive and brutish, this is exactly what Mortensen attempted to do.
Mortensen cannot offer evidence of Brady's prior bad acts to show that Brady acted in
conformity with that type of behavior on the night of the shooting. We conclude that the
probative value of this evidence on the issue of identity is marginal at best and is outweighed
by its prejudicial effect. Thus, the district court properly refused to allow the introduction of
Brady's prior bad acts to show a pattern of behavior.
6

Admission of expert testimony
[Headnote 8]
Mortensen moved for a mistrial based on the State's failure to provide Mortensen with
Johnson's reports prior to the trial. Mortensen argues that the district court wrongfully denied
the motion, thus allowing Johnson to testify that Brady's truck moved during the shooting.
We disagree.
[Headnote 9]
Denial of a motion for mistrial can only be reversed where there is a clear showing of an
abuse of discretion. Sparks v. State, 96 Nev. 26, 30, 604 P.2d 802, 804 (1980).
[Headnote 10]
The admissibility of expert testimony is within the discretion of the trial court. Emmons v.
State, 107 Nev. 53, 56, 807 P.2d 718, 720 (1991).
Mortensen argues that, at the pre-trial hearing, held April 24, 1997, the State
misrepresented the existence of Johnson's ongoing experiments by stating that discovery was
complete. Mortensen argues that as a result of this misrepresentation, reversal is
warranted under McKee v. State, 112 Nev. 642, 917 P>2d 940 {1996).
__________
discretion in its exclusion of the evidence on the issue of identity and modus operandi (the latter theory was
offered by appellant at oral argument).

6
Mortensen also argues that his Sixth Amendment right to confrontation and his Fourteenth Amendment right
to due process were denied when he was not allowed to question Brady concerning Brady's prior bad acts. Thus,
Mortensen argues that NRS 48.045(2) is unconstitutional. We disagree. Neither the Sixth nor the Fourteenth
Amendment was violated in this case. Mortensen was able to effectively cross-examine Brady. Furthermore,
Brady's prior bad acts do not exculpate Mortensen. For these reasons, Mortensen's constitutional rights were not
denied under NRS 48.045(2).
Mortensen argues that the prior incidents were also admissible for impeachment purposes. We perceive no
abuse of discretion in refusing admission of this evidence for this purpose. Brady's credibility was more than
adequately litigated before the jury.
argues that as a result of this misrepresentation, reversal is warranted under McKee v. State,
112 Nev. 642, 917 P.2d 940 (1996). In McKee, the State obtained a photograph of the
defendant holding a baggy full of drugs. Rather than provide the defense with a copy of the
picture, the State kept it a secret in the hope that it could be used to impeach the defendant.
The defendant denied using drugs and, on cross-examination, was impeached with the
photograph. This court ordered a new trial based on the unfair and prejudicial actions of the
State. Id. at 648, 917 P.2d at 944.
The State's actions in McKee were more egregious than the State's actions in the present
case. The photograph in McKee showed the defendant holding drugs, while Johnson's
testimony concerned the truck and did not directly implicate Mortensen. Further, nothing in
the record suggests that the State intentionally concealed Johnson's reports from Mortensen.
The State did not receive Johnson's reports until April 25, 1997, at which time they were
forwarded to Mortensen. We conclude that any prejudice caused by the late delivery of the
reports was harmless. Even if Mortensen were surprised when Johnson testified that the truck
moved during the shooting, the movement of the truck was not, in any respect, determinative
of the ultimate verdict. Five eyewitnesses either directly or indirectly identified Mortensen as
the shooter. The overwhelming evidence of Mortensen's guilt militates against a conclusion
that harm resulted from the delayed disclosure of the report. Finally, Mortensen was afforded
the opportunity to cross-examine Johnson regarding the report and did so. For these reasons,
the district court did not abuse its discretion when it denied Mortensen's motion for a mistrial.
[Headnote 11]
Citing Wrenn v. State, 89 Nev. 71, 506 P.2d 418 (1973), Mortensen also argues that
Johnson's testimony was speculative and uninformed and should not have been admitted. We
disagree.
In Wrenn, a defense expert sought to testify concerning the elevation of a rifle when it was
fired. The trial court ruled that the expert could not testify. This court affirmed because the
expert attempted to recreate an event which had occurred two years prior, and had relied on
several assumptions not supported by the actual facts of the case. Id. at 73-74, 506 P.2d at
419-20.
Here, there is nothing to suggest that Johnson made any unsubstantiated assumptions in
the conduct of his experiments. These experiments were also undertaken within months of the
shooting. It is also undisputed that Johnson was an expert in firearms examination and that he
was competent to give testimony regarding bullet trajectories. For these reasons, the district
court did not abuse its discretion when it allowed Johnson to testify regarding bullet
trajectories. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 {1992) {reiterating
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").
573 (1992) (reiterating 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).
Preservation of evidence
[Headnote 12]
Mortensen argues that his due process rights were violated by the State's failure to preserve
evidence and provide evidence subject to discovery. Thus Mortensen claims the case should
be reversed and the charge dismissed. Specifically, Mortensen contends that the State should
have acquired Brady's truck and clothing and provided them to Mortensen before they could
be altered. This argument is without merit.
[Headnote 13]
To establish a violation of due process resulting from the state's loss or destruction of
evidence, a defendant must demonstrate either (1) that the state lost or destroyed the evidence
in bad faith, or (2) that the loss unduly prejudiced the defendant's case and the evidence
possessed an exculpatory value that was apparent before the evidence was destroyed.'
Sheriff v. Warner, 112 Nev. 1234, 1239-40, 926 P.2d 775, 778 (1996) (quoting State v. Hall,
105 Nev. 7, 9, 768 P.2d 349, 350 (1989)); see also Daniels v. State, 114 Nev. 261, 267-68,
956 P.2d 111, 115 (1998).
Mortensen fails to show that the State acted in bad faith when it failed to provide Brady's
truck or clothing to Mortensen. The LVMPD obtained Brady's truck shortly after the
shooting, conducted an examination, took pictures and returned the truck to Brady. At that
time, the State did not consider Brady a suspect, nor did it know that Mortensen would
contend that Brady was the shooter.
7
Thus, the LVMPD was not required to provide the
truck or the clothing to Mortensen.
Mortensen also argues that the State acted in bad faith by ignoring a justices' court's
request, at a bail hearing, that the State not destroy any evidence. However, the justices' court
did not order the State to produce the truck and clothing, it merely requested that the State ask
Brady not to destroy evidence. Additionally, the justices' court correctly stated that it did
not have jurisdiction over Brady's property.
__________

7
Mortensen claims that the State was notified of the defense theory by way of a letter written to the State in
January of 1997. However, the January letter does not appear in the record.
Mortensen also claims that a motion in limine filed by the State on March 31, 1997, showed that the State was
aware of the defense's theory. Even if the motion did show that the State was aware of Mortensen's theory, it
would only show that the State was on notice at the end of March, but not that the State was on notice in January,
when the truck was examined. Thus, the statement does not demonstrate that the State was aware of Mortensen's
theory at the time the evidence was altered.
justices' court correctly stated that it did not have jurisdiction over Brady's property. State of
Nevada v. Justice Court, 112 Nev. 803, 806, 919 P.2d 401, 402 (1996) (concluding that the
justice[s'] court does not have the authority to order criminal discovery prior to a preliminary
hearing). The bail hearing took place on January 15, 1997, and the preliminary hearing was
scheduled for January 24, 1997. Thus, the justices' court did not have jurisdiction to grant the
relief sought by Mortensen.
For these reasons, we conclude that the State did not act in bad faith when it did not
preserve and provide Brady's truck and clothing to Mortensen.
8

[Headnote 14]
Furthermore, Mortensen has failed to demonstrate that he was unduly prejudiced by any
alterations made to Brady's truck or clothing.
9
To establish prejudice, Mortensen must show
that it could be reasonably anticipated that the evidence would have been exculpatory and
material to the defense. Leonard v. State, 114 Nev. 639, 654, 958 P.2d 1220, 1232 (1998)
(citing Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1970)).
Although the custom bench seat present in the truck on the night of the shooting was
removed and sold by Brady, Mortensen was able to acquire the seat and place it in the truck
for the trial. The jury was able to observe the truck with the custom seat, and jury members
were allowed to sit in the truck. Thus, they could assess the credibility of Brady's statement
that he could not reach across the cab sufficiently to have discharged Mortensen's weapon as
described by eyewitnesses.
10
Mortensen has, therefore, not demonstrated that the custom
seat, prior to its removal, possessed an exculpatory value any greater than was apparent from
the reinstalled seat. Thus, the removal and subsequent reinstallation of the custom seat did not
prejudice Mortensen.
Although Brady's truck was repainted after the shooting, there was never a dispute that
Brady's truck was the vehicle from which the shots were fired. Thus, the repainting of the
truck did not prejudice Mortensen.
__________

8
The significance of any perceived failure by the State to preserve this evidence and any inferences arising
therefrom was more than adequately conveyed to the jury.

9
Mortensen also argues that his conviction should be reversed pursuant to Cook v. State, 114 Nev. 120, 953
P.2d 712 (1998). In Cook, we reversed a defendant's conviction for sexual assault where the police had lost a
substantial amount of evidence, including all photographs of the crime scene and the victim's sweater. The police
also failed to collect the victim's pants, which were allegedly torn during the assault. Because the police in the
present case have not actually lost any evidence, Cook is not applicable, and Mortensen's argument is thus
without merit.

10
At trial, it was undisputed that Mortensen's weapon fired the fatal shot.
Similarly, the removal of the window tint did not prejudice Mortensen since the eyewitnesses
to the shooting observed the shooter either through the rolled down passenger window or
through the untinted, front window.
Mortensen argues that the adjustment of the clutch and carburetor prevented him from
demonstrating that the truck, if left in gear, would roll forward if the driver's foot were
removed from the brake, i.e., if Brady's foot came off the brake while he leaned across the
truck cab to fire out the passenger window. However, Mortensen established this proposition
at trial when a defense investigator testified that Brady's truck would roll forward if the driver
removed his foot from the brake. In any case, both the State's and the defense's theories relied
on the movement of the truck. The State argued that Brady began to drive once Mortensen
fired his gun, while the defense argued that the truck moved when Brady leaned over to
shoot. Since the jury heard testimony regarding the tendency of the truck to move when the
brake was released, we conclude that Mortensen was not unduly prejudiced by the adjustment
of the carburetor and clutch.
11

[Headnote 15]
Mortensen argues that since Brady's clothing was laundered before it could be examined, it
was impossible to determine whether it contained powder residue which would have
suggested that Brady was the shooter. However, we have held that [i]t is not sufficient that
the showing disclose merely a hoped-for conclusion from examination of the destroyed
evidence.' Warner, 112 Nev. at 1240, 926 P.2d at 778 (quoting Boggs, 95 Nev. at 913, 604
P.2d at 108 (citation omitted)). [M]ere assertions by the defense counsel that an examination
of the evidence will potentially reveal exculpatory evidence does not constitute a sufficient
showing of prejudice. Warner, 112 Nev. at 1242, 926 P.2d at 779. Because there is nothing,
other than Mortensen's contention, to suggest that powder residue ever existed or was washed
out of Brady's clothing, Mortensen was not unduly prejudiced by the laundering of the
clothing. Again, the inference that Brady was trying to conceal his involvement by destroying
evidence was argued at length as part of Mortensen's defense strategy. That the evidence was
lost and might conceivably have provided Mortensen with favorable evidence is not
grounds for dismissing the charge against him.
__________

11
The district court sustained the State's objection when Mortensen attempted to establish how quickly the
truck would move if the brake were released. At no other time during the trial did Mortensen attempt to establish
the truck's rate of acceleration. Further, both the State and defense theories relied on the movement of the truck.
The fact that the truck moved, not how fast it moved, was relevant to both parties. Thus, Mortensen was not
unduly prejudiced when the court refused him permission to establish the rate of acceleration.
evidence was lost and might conceivably have provided Mortensen with favorable evidence is
not grounds for dismissing the charge against him.
Newly discovered evidence
Fourth, Mortensen argues that the district court wrongfully denied his motion for a new
trial based on newly discovered evidence. He makes this argument in each of his appeals.
12
For convenience, each appeal will be addressed in turn.
Docket No. 30855
[Headnote 16]
Sometime in early 1996, Mortensen and Brady were involved in the arrest of a woman
named Carye Morris. Morris subsequently alleged that Brady coerced her into performing an
illicit sexual act upon him during transport to the Clark County Detention Center. This
information was provided to Mortensen's counsel during the trial but, because of what were
perceived as serious credibility problems, counsel decided not to use Morris as a witness.
However, after the verdict, it was learned that, in addition to the sexual misconduct, Morris
also alleged that Brady explained his behavior towards her by stating that he was evil or
that he was an evil man. Mortensen argues that Brady's statement to Morris corroborates
Mortensen's statement at trial, that Brady described himself as evil after the shooting.
Mortensen argues that Morris's statement is circumstantial evidence of Brady's guilt and thus
warrants a new trial. We disagree.
[Headnotes 17, 18]
To establish a claim for a new trial based on newly discovered evidence, the defendant
must show that the evidence is
newly discovered; material to the defense; such that even with the exercise of
reasonable diligence it could not have been discovered and produced for trial;
non-cumulative; such as to render a different result probable upon retrial; not only an
attempt to contradict, impeach, or discredit a former witness, unless the witness is so
important that a different result would be reasonably probable; and the best evidence
the case admits.
Sanborn v. State, 107 Nev. 399, 406, 812 P.2d 1279, 1284-85 (1991) (footnote omitted). The
grant or denial of a new trial based on newly discovered evidence is within the discretion of
the trial court and will not be reversed on appeal absent an abuse of that discretion.
__________

12
Docket No. 30855 was Mortensen's direct appeal from his conviction and from denial of a motion for a new
trial. Subsequent to his conviction, Mortensen made another motion for a new trial, which was denied and is the
basis of Docket No. 33293.
on newly discovered evidence is within the discretion of the trial court and will not be
reversed on appeal absent an abuse of that discretion. Id. at 406, 812 P.2d at 1284.
Morris's statement would not in any probability produce a different result upon retrial. The
statement has no connection to the circumstances of Mendoza's murder. It neither exculpates
Mortensen nor inculpates Brady. Further, its admissibility, argued by Mortensen as justified
pursuant to NRS 48.045(2), is questionable. Finally, Morris changed her story about her arrest
several times, and it is unlikely that her testimony, if admitted, would have had any
persuasive value with a jury. For these reasons, we conclude that the district court did not
abuse its discretion when it denied Mortensen's motion for a new trial based on newly
discovered evidence.
13

Docket No. 33293
Subsequent to his conviction, Mortensen filed a motion for a new trial based on three
items of newly discovered evidence.
[Headnote 19]
First, Mortensen claims that LVMPD Officer Bill Butler heard Brady refer to himself as
evil in Officer Butler's presence. We conclude that Officer Butler's statement would not
render a different result probable upon retrial for the same reasons as set forth in the
discussion of Carye Morris's statement.
[Headnote 20]
Second, Mortensen claims that a letter and two notes written by Torrey Johnson, the
State's firearms expert, justify a new trial.
The letter was addressed to the district attorney and explained that Johnson changed the
scale of certain transparency exhibits after showing them to defense counsel. The letter also
expressed concern regarding whether the jury understood a visual aid, and whether the jury
understood that Johnson did not form an opinion regarding the position of the truck or the
murder weapon, but did form an opinion that the truck was moving while the shots were
fired.
The notes were dated April 29, 1997, and May 2, 1997. Mortensen claims that these notes
show that Johnson felt that a bullet from Mortensen's gun may not have been powerful
enough to inflict the type of wound found on Mendoza's body, and thus suggest the
possibility of a third gun.
__________

13
The thrust of Mortensen's arguments concerning evidence against Brady is that if Brady is responsible for
the killing, then Mortensen is innocent. However, evidence of Brady's complicity does not, in any event, equate
with evidence of Mortensen's innocence.
We conclude that even if the letter shows Johnson provided confusing testimony, the
introduction of the letter at a new trial would simply be an attempt to discredit Johnson. This
impeachment is not so important that a different result would be reasonably probable if
admitted since the letter did not contradict or refute any of Johnson's trial testimony.
Similarly, we conclude that Johnson's notes would not be likely to render a different result
probable on retrial. Mortensen testified that his .380 Sig Sauer was the murder weapon. Thus,
the possible existence of a third gun would not change the result of the trial. Furthermore, it is
not reasonably probable that any impeachment of Johnson with the notes would render a
different result if admitted.
14

[Headnote 21]
Third, Mortensen argues that a new trial is warranted based on the testimony of LVMPD
Officer Marc Barry before a federal jury on July 28, 1998, well after Mortensen's conviction.
Barry testified that Brady had mentioned several times the fact about going and doing a
drive-by or something like that nature. Barry testified that Brady made this statement
approximately six different times. The statements were made approximately one year prior to
Mendoza's death.
We conclude that this evidence was not discoverable with reasonable diligence. Defense
counsel received an anonymous phone call during the trial, which roughly suggested the
contents of Brady's statements to Barry. However, Barry denied knowledge of any such
statements when contacted by an investigator retained by the defense. Barry also denied
knowledge of the statements when contacted by the district attorney. Thus, Mortensen
exercised due diligence but was unable to confirm whether Barry had knowledge of any such
statements made by Brady.
We conclude that Barry's testimony regarding Brady's statements would not be such as to
render a different result on guilt or innocence probable upon retrial. The only dispute over the
identity of the person who fired the fatal shot was between Brady and Mortensen.
All of the eyewitnesses testified that the passenger was the actual shooter. It is undisputed
that Mortensen was the passenger. Witnesses also provided physical descriptions of the
shooter, which were consistent with Mortensen's appearance. It is also undisputed that the
murder weapon was Mortensen's off-duty Sig Sauer. Numerous shell casings from
Mortensen's gun were found in the street suggesting that the fatal shots were fired with the
weapon having been pointed and discharged from a position outside of Brady's truck as
described by the eyewitnesses.
__________

14
We also note that Johnson never testified at trial regarding Mendoza's wound, nor did Johnson give an
opinion on wound size.
weapon having been pointed and discharged from a position outside of Brady's truck as
described by the eyewitnesses. Additionally, no evidence was ever developed that Mortensen
pointed another weapon out of the truck window while Brady fired the fatal shots.
15

Certainly, the jury heard Brady concede that it was his idea to commence a pattern of
citizen harassment that night. The jury heard Brady concede that he made the choices of
where to drive to conduct this harassment until Mortensen suggested they turn into McKellar
Circle. The same jury also heard Brady's admission that he advised Mortensen to keep quiet
and that he destroyed or modified what might have been important evidence. Further, Brady's
admissions exposed him to the possible commencement of separate state and/or federal
proceedings against him and, thus, were against his penal interests. His participation in this
drive-by shooting was in part consistent with Barry's grand jury testimony that Brady had
contemplated involvement in this type of activity. Almost all of this, including the alleged
effect of Brady's connections within the police department, his modification of the truck and
other physical evidence, and the claim that witnesses could have been confused as to the
identity of the shooter, was comprehensively argued to the jury. Brady denied ever discussing
the prospect of engaging in drive by activities with Barry. His possible perjury on this point
would demonstrate his attempt to minimize any inference of a greater degree of involvement.
However, Barry's proposed testimony does not exonerate Mortensen. In sum, the evidence
demonstrates that two rogue police officers were engaged in unlawful activities that led to the
tragic death of Daniel Mendoza. Both were clearly subject to criminal prosecution. At
Mortensen's trial the jury was the final arbiter of the truth, based upon all of the evidence
submitted. Barry's proposed testimony is insufficient to satisfy the requirements for a new
trial.
For all of the above reasons, we affirm the judgment of the district court.
Maupin and Becker, JJ., concur.
__________

15
Brady claimed that he also drew and pointed his off-duty revolver during this incident. Mortensen never
claimed that he was holding Brady's revolver. Again, however, the jury was provided with all of this
information.
____________
115 Nev. 290, 290 (1999) Wade v. State
TIMOTHY FRANK WADE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29235
October 11, 1999 986 P.2d 438
Petition for rehearing in Wade v. State, 114 Nev. 914, 966 P.2d 160 (1998). Second
Judicial District Court, Washoe County; Mark Handelsman, Judge.
Defendant was convicted in the district court of conspiracy to sell a controlled substance
and sale of methamphetamine, and he appealed. The supreme court, 114 Nev. 914, 966 P.2d
160 (1998), affirmed. On defendant's petition for rehearing, the supreme court held that: (1)
tape-recorded statements of unavailable informant were admissible even without limiting
instruction; (2) allegedly inaccurate statements made in prior opinion did not warrant
rehearing; and (3) state did not commit material Brady violation in failing to disclose
complete confidential informant file.
Rehearing denied; opinion modified.
John B. Routsis and William J. Routsis, II, Reno, for Appellant.
Respondent.
1. Criminal Law.
Tape-recorded statements of unavailable confidential informant were not hearsay and were instead
admissible, in prosecution for narcotics offenses, in order to provide context for defendant's admissions, even
without a limiting instruction.
2. Criminal Law.
Defendant could not be heard to complain on appeal that trial court did not give limiting instruction with respect to tape-recorded
statements of unavailable confidential informant, where defendant never requested a special, limiting instruction.
3. Criminal Law.
Allegedly inaccurate statements made by supreme court in its prior opinion affirming defendant's convictions for narcotics
offenses, concerning state's failure to disclose potentially exculpatory evidence, did not warrant rehearing. NRAP 40(c).
4. Criminal Law.
The supreme court is not a fact-finding tribunal. That function is best performed by the district court.
5. Criminal Law.
It is the responsibility of counsel for the parties to create an adequate appellate record by assuring that appropriate objections and
contested factual matters are resolved in the first instance in the district court.
115 Nev. 290, 291 (1999) Wade v. State
tested factual matters are resolved in the first instance in the district court.
6. Criminal Law.
Defendant failed to show that state committed a material Brady violation in failing to disclose, during narcotics prosecution, the
complete confidential informant file kept by the federal Drug Enforcement Agency (DEA), so as to warrant reversal. There was no
reasonable possibility that result of defendant's trial would have been affected if he had received all information requested.
7. Criminal Law.
Reversal may be warranted where material Brady evidence is withheld from the defense.
8. Criminal Law.
A Brady violation occurring after the defense has made a specific request for evidence is material if there is a reasonable
possibility that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.
OPINION
Per Curiam:
In Wade v. State, 114 Nev. 914, 966 P.2d 160 (1998), this court affirmed appellant Timothy Frank Wade's conviction of one count of
conspiracy to sell a controlled substance and one count of sale of twenty-eight (28) grams or more of methamphetamine. Appellant has
petitioned this court for rehearing of that decision. Although we deny rehearing, we issue this opinion modifying our prior opinion.
The facts of this case are recounted in detail in the previously issued opinion. In brief, appellant was the target of a federal drug
trafficking investigation. Federal Drug Enforcement Agency (DEA) agents used a confidential informant, Clay Hodges, to arrange meetings
between appellant and DEA agents. Under the direction of the DEA, Hodges taped a number of telephone and face-to-face conversations
with appellant. Ultimately, Hodges arranged for an agent to purchase two pounds of methamphetamine for $21,000 from appellant, Nancy
Lyn Woods, and Heriberto Islas.
Appellant was subsequently tried and convicted in state court on conspiracy and trafficking charges. At the trial below, Hodges could
not be located and did not appear as a witness. The trial court permitted the state to play the tape-recorded conversations between Hodges
and appellant for the jury during its case-in-chief.
During oral argument before this court, counsel for appellant focused primarily on two assignments of error:
115 Nev. 290, 292 (1999) Wade v. State
focused primarily on two assignments of error: (1) that the district court erroneously admitted
the taped conversations; and (2) that the state failed to disclose potentially exculpatory
evidence regarding Hodges to the defense. On rehearing, appellant again focuses on these
issues and contends that this court overlooked or misapprehended material matters relating to
these contentions. See NRAP 40(c).
Admission of the taped conversations
[Headnote 1]
United States v. Tangeman, 30 F.3d 950, 952 (8th Cir. 1994), held that an unavailable
informant's tape-recorded statements were properly admitted at trial because they were
offered to provide context for the defendant's admissions and not to prove the truth of the
matters asserted. In our prior opinion, we adopted the approach taken in Tangeman and
concluded that the district court did not err in admitting the recordings of conversations
between Hodges and appellant. We held that Hodges' tape-recorded statements were not
hearsay because the state did not introduce Hodges' statements on the tapes to prove the
truth of the matter asserted, but only for the limited purpose of providing a context for
[appellant's] statements. Wade, 114 Nev. at 918, 966 P.2d at 162-63.
[Headnote 2]
On rehearing, appellant complains that this court improperly relied on Tangeman because
the jury in that case was specifically instructed that voices on the tape other than the
defendant's were to be considered only to place the defendant's statements in context. See
Tangeman, 30 F.3d at 952. Because no such special, limiting instruction was given at his
trial, appellant now asserts that this court improperly applied the rationale of Tangeman to his
case.
In the proceedings below, the state emphasized, on the record, that it had no problem
with giving the jury a limiting instruction similar to the instruction in Tangeman. Further, the
district court specifically indicated, on the record, its willingness to give such an instruction.
With the exception of objections to the wording of the instructions respecting appellant's
procuring agent and entrapment defenses, however, defense counsel specifically stipulated,
on the record, that he had no objection to the instructions provided in this case. Appellant
never requested a special, limiting instruction similar to the one given in Tangeman. Under
these circumstances, appellant cannot now be heard to complain that the court did not give
the instruction.
115 Nev. 290, 293 (1999) Wade v. State
court did not give the instruction.
1
See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d
350, 351 (1991) (defense counsel's failure to request an instruction precludes appellate
consideration of the issue).
Moreover, the cases other than Tangeman cited in our earlier opinion held that recorded
statements of an unavailable informant are admissible when used only to provide context for
the defendant's statements, even without a limiting instruction. See United States v. Inadi, 475
U.S. 387, 398 n.11 (1986); United States v. McKneely, 69 F.3d 1074 (10th Cir. 1995). Thus,
the district court's failure to give a limiting instruction in the instant case was not reversible
error, and this court did not misapprehend any material matter in concluding that Hodges'
recorded statements were properly admitted.
2

Alleged failure to disclose potentially exculpatory evidence
[Headnote 3]
This court's prior opinion states that the DEA refused to disclose the [confidential
informant] file on Hodges to the State. Wade, 114 Nev. at 919, 966 P.2d at 163. On
rehearing, and without any citation to the record, appellant contends that [t]his fact' is
untrue. Again without citation to the record, appellant further asserts: It is uncontested that
the D.A. possessed the confidential informant file. The D.A. requested the C.I. file and it was
turned over to him.
We cannot ascertain conclusively from this record whether the DEA in fact refused to
disclose information to the state. Therefore, upon further reflection, it appears that our prior
opinion could have more aptly stated that appellant was not provided with all the
information he requested in discovery relating to the confidential informant."
__________

1
We recognize, of course, that counsels' decision to not request the instruction may well have been a sound
trial tactical decision based upon counsels' assessment of whether the instruction would detract from the jury's
consideration of any correlation between Hodges' tape-recorded statements and appellant's entrapment and
procuring agent defenses.

2
Appellant also asserts that this case is distinguishable from Tangeman because the DEA's deactivation of
Hodges as a confidential informant made [Hodges] unavailable to testify. See NRS 51.055(2) ([a] declarant is
not unavailable as a witness' if his . . . absence is due to the procurement or wrongdoing of the proponent of his
statement for the purpose of preventing the witness from attending or testifying). Appellant has failed to
demonstrate, however, that the district court erred in concluding that: (1) the State did not actively cause the
flight of Mr. Hodges; (2) [t]he fact that Federal agents deactivated Mr. Hodges did not in and of itself bring
about Mr. Hodges' unavailability; and (3) neither the DEA's action nor its inaction . . . is sufficiently causally
related to find State action which caused Mr. Hodges' unavailability. Accordingly, we reject appellant's
contention.
115 Nev. 290, 294 (1999) Wade v. State
with all the information he requested in discovery relating to the confidential informant.
Nonetheless, we emphasize that appellant has not pointed this court to any specific evidence
of record that firmly establishes that the statement in our prior opinion is untrue. Rather,
our independent review of the record, the briefs, the oral argument tape, and the points and
authorities submitted by the parties on rehearing discloses strong reasons to infer that the
DEA failed or refused to disclose at least some information to the state.
For example, in discussing evidence appellant requested in discovery concerning the
DEA's confidential informant file, the state represented to this court in its answering brief on
appeal:
[I]t is clear that the prosecutor never had the evidence. If he had it, defense counsel
could have copied it. If it existed at all, the DEA had it. The DEA is not subordinate to
the State and was not acting on behalf of the State of Nevada when it prepared the CI
file.
In addition, at oral argument before this court, counsel for the state was asked if anything was
omitted from the file provided to defense counsel. Counsel responded:
Oh I'm sure there was. The DEA did not furnish us with everything they had. They
furnished us with . . . the file labeled Tim Wade. Certainly, the DEA has access to
other information. They had information in other files under other namesphone
records and the like.
3

Additionally, in its opposition to the instant petition for rehearing, the state argues:
[Appellant] has not yet identified any exculpatory information which was possessed by the
District Attorney but withheld from the defense. If we had it or could get it, we would
surrender it.
[Headnotes 4, 5]
Although the above-quoted remarks of counsel for the state strongly suggest that the DEA
may well have refused to disclose information to the state, we acknowledge that this is an
unresolved factual issue. However, [t]his court is not a fact-finding tribunal; that function is
best performed by the district court. See Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296,
297 (1983). It is the responsibility of counsel for the parties to create an adequate
appellate record by assuring that appropriate objections and contested factual matters
are resolved in the first instance in the district court.
__________

3
The state's counsel further insisted that the state gave defense counsel everything that we had access to. In
addition, we were able to persuade the DEA to surrender the Tim Wade' file . . . . But there's more, there's
things in the Clay Hodges file. We did not get that from the DEA. When asked by the court if the state
requested that file, the state's counsel replied: There's no record that we did. I don't know if we did or not. The
DEA has not always been cooperative with the local prosecuting officials.
115 Nev. 290, 295 (1999) Wade v. State
responsibility of counsel for the parties to create an adequate appellate record by assuring that
appropriate objections and contested factual matters are resolved in the first instance in the
district court.
Although it may not be entirely clear whether the DEA refused to disclose all of Hodges'
C.I. file to the state, it is abundantly clear from the above-quoted remarks and argument that
the state does indeed contest whether it possessed all of the C.I. file. We therefore reject as
wholly unfounded appellant's claim that [i]t is uncontested that the D.A. possessed the
confidential informant file. The D.A. requested the C.I. file and it was turned over to him.
The question is quite emphatically contested by the state.
Appellant next contends on rehearing that this court's opinion inaccurately states that
appellant's counsel conceded that he did not believe that the State had any knowledge of the
DEA's C.I. file on Hodges. According to appellant, this statement was correct in February
1996, prior to trial, but not in July 1996, at the time of trial. Even assuming, however, that
this court misapprehended counsel's remarks at oral argument in this regard, we fail to
perceive a material misapprehension warranting rehearing.
Next, and again without reference to any specific statement from the oral argument before
this court, appellant asserts on rehearing: It was at oral argument that defense counsel was
first made aware the State conceded error by admitting the C.I. file was not completely turned
over. We have been unable to discover any statements from the oral argument before this
court which would permit us to conclude that the state has conceded error. In any event, the
unsupported allegation does not warrant rehearing.
[Headnotes 68]
Appellant has failed to demonstrate that our prior opinion misstated, overlooked, or
misapprehended any material facts or law relating to the discovery issues raised on appeal.
See NRAP 40(c). Appellant argued on appeal that the state's failure to provide the evidence
he requested during discovery required reversal of his conviction. See Kyles v. Whitley, 514
U.S. 419 (1995); Brady v. Maryland, 373 U.S. 83 (1963); Roberts v. State, 110 Nev. 1121,
881 P.2d 1 (1994). Reversal may be warranted where material Brady evidence is withheld
from the defense. Id. A Brady violation occurring after the defense has made a specific
request for evidence is material if there is a reasonable possibility that the result of the trial
would have been different if the suppressed documents had been disclosed to the defense. See
Jimenez v. State, 112 Nev. 610, 619, 918 P.2d 687, 692 (1996) (quoting Roberts, 110 Nev. at
1132, 881 P.2d at 8); see also Strickler v. Greene, 527 U.S. 263, 2S9-90 {1999).
115 Nev. 290, 296 (1999) Wade v. State
527 U.S. 263, 289-90 (1999).
4
Although defense counsels' presentation of the theory of
defense in this case may have been enhanced by more complete access to the requested
information, we discern no basis for concluding that there is a reasonable possibility that the
outcome of appellant's trial would have been affected if appellant had received all the
information requested. See, e.g., Strickler, 527 U.S. at 290-96; Schlafer v. State, 115 Nev.
167, 979 P.2d 712 (1999).
Even without the complete C.I. file and other requested information, appellant's trial
counsel were able to cross-examine the DEA agent assigned to appellant's case effectively
and at great length regarding a variety of matters relevant to appellant's entrapment and
procuring agent defenses, including, among other things, Hodges' initial referral by the
Consolidated Narcotics Unit to the DEA, the extent of the DEA agent's investigation of
Hodges' background, the nature and specific terms of the agreement between Hodges and the
DEA, Hodges' adherence and failure to adhere to the DEA agent's directions, Hodges'
contacts with appellant, and Hodges' criminal record. The record discloses that defense
counsel had ample opportunity to present and did in fact thoroughly and skillfully present
appellant's defense theories to the jury. The jury listened to appellant's theories regarding
what had occurred during a gap in the tape recording when Hodges shut off the transmitter.
The jury was also adequately instructed on appellant's entrapment and procuring agent claims.
As we recently held in Schlafer, given the thorough scope and breadth of the
cross-examination and presentation by defense counsel at trial, there is no reasonable
possibility that the result of appellant's trial would have been affected by the timely provision
of appellant's discovery requests. See also Farley v. United States, 694 A.2d 887, 889 (D.C.
1997); cf. Carriger v. Stewart, 132 F.3d 463, 480-82 (9th Cir. 1997) (information withheld by
prosecution of government witness's history of violent crimes, untruthfulness, mental
problems, and commission of ninety-two admitted burglaries after the witness was released
from a first burglary sentence was material where government's case hinged on credibility of
the informant).
Having revisited our prior decision, however, we nonetheless conclude on rehearing that
our prior opinion inappropriately distinguished this case from the Roberts case on the basis
that the DEA is not a state agent or actor.
__________

4
In Roberts, this court determined that in specific request situations, the Nevada Constitution requires a
standard more favorable to the accused than the standard applied by the federal courts. Id. (citing Nev. Const.
art. 1, 8). Thus, unlike Strickler, which applies a reasonable probability test, Nevada requires the existence
of a reasonable possibility that the claimed evidence would have affected the outcome of the trial. Id.
115 Nev. 290, 297 (1999) Wade v. State
DEA is not a state agent or actor. See Roberts, 110 Nev. at 1135, 881 P.2d at 8-9 (prosecutor
must disclose to defendant favorable Brady material in the possession of the police
department). Notably, the state does not contest appellant's explanation that it is a common
practice for the state to obtain Brady material from federal agencies such as the DEA and
provide it to defense counsel. In fact, the state obtained information from the DEA for
defense counsel in this case. We do not wish to discourage cooperation between the state,
agencies of the federal government, and defense counsel in discovery matters, especially
where, as here, a criminal investigation was instigated by federal agents, but ultimately
pursued by state prosecutors based on the information acquired in the federal investigation.
Accordingly, we modify the earlier opinion to delete the language distinguishing this case
from Roberts on the basis that the DEA is not a state actor or agent.
Further, despite the state's counsel's insistence at oral argument that defense counsel could
and should have obtained materials directly from the DEA by subpoena, we retract the
statements to that effect in the prior opinion.
5
First, as a practical matter, it appears that more
than a simple subpoena may be required in order to compel a federal agency to disclose
information. See generally 28 C.F.R. 16.22 to 16.28 (1998). More importantly, however,
upon further reflection, we are concerned that the language in our prior decision might be
read as absolving or dissuading the state from attempting in good faith to obtain appropriate
information requested by the defense, where, as here, the information has been gathered and
is maintained by an agency of another jurisdiction. Accordingly, we modify our earlier
opinion to delete the statements that defense counsel could have obtained information directly
from the DEA by subpoena.
Although we deny appellant's petition for rehearing, as set forth above, we modify our
earlier opinion issued in the case.
6

__________

5
We note that at the oral argument in this case, this court specifically questioned counsel for both parties
about the proper procedure for compelling the DEA's release of potentially exculpatory materials to the defense.
Neither party's counsel was able to provide this court with an accurate, cogent, complete, or helpful clarification
of the prevailing practice or procedure in this respect.

6
This petition challenges an opinion that was issued prior to the expansion of the court from five to seven
justices on January 4, 1999. Only those justices remaining on the court who previously heard this matter
___________
115 Nev. 298, 298 (1999) Labastida v. State
KRISEYA J. LABASTIDA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25685
October 11, 1999 986 P.2d 443
Petition for rehearing in Labastida v. State, 112 Nev. 1502, 931 P.2d 1334 (1996). Second
Judicial District Court, Washoe County; James A. Stone, Judge.
Defendant was convicted in the district court of second degree murder and felony child
neglect, and she appealed. The supreme court affirmed. Defendant's petition for rehearing was
granted. The supreme court held that: (1) evidence that defendant committed felony child
neglect did not establish first degree murder, or aiding and abetting first degree murder, for
which jury could have given defendant leniency by convicting her of second degree murder;
(2) evidence did not establish second degree felony murder; and (3) evidence did not establish
implied malice for second degree murder.
Petition for rehearing granted; opinion modified; judgment of conviction
affirmed in part and reversed in part.
Glynn Burroughs Cartledge, Reno, for Appellant.
Respondent.
Richard F. Cornell, Reno, for Amicus Curiae.
1. Homicide.
The suggestion that one who is responsible for a child may passively aid and abet first degree murder by
observing and being manifestly aware of acts of child abuse, and by doing nothing to stop the abuse when it
is possible to take preventative measures, improperly merges concepts of child abuse and child neglect
and is inconsistent with the elements of first degree murder. NRS 195.020, 200.030(1)(b).
2. Homicide.
The use of the term child abuse and not child neglect as statutory basis for first degree murder evinces the legislature's intent
that different meanings apply to the two terms and that a murder perpetrated by means of child abuse and not child neglect
constitutes first degree murder. NRS 200.030(1)(b).
3. Criminal Law.
It could not be assumed that jury found defendant aided and abetted her husband in committing first degree murder by child abuse,
where the jury acquitted defendant of the separate child abuse charge. NRS 195.020, 200.030(1)(b), 200.508.
4. Homicide.
Conviction of defendant for directly committing, or aiding and abetting her husband in committing, a willful,
deliberate, and premeditated first degree murder of their child required more than a showing that the child
died and that defendant was there.
ting her husband in committing, a willful, deliberate, and premeditated first degree murder of their child
required more than a showing that the child died and that defendant was there. Such a finding required proof
beyond a reasonable doubt of every fact necessary to constitute the crime charged. NRS 195.020, 200.030(1)(a).
5. Homicide.
Defendant's mere presence in the home with her husband, without more, was insufficient to establish that defendant aided and
abetted the willful, deliberate, and premeditated first degree murder of their child, where husband rather than defendant personally
inflicted the child's fatal injuries. NRS 195.020, 200.030(1)(a).
6. Homicide.
The second degree felony murder rule applies only where the felony is inherently dangerous, where death or injury is a directly
foreseeable consequence of the illegal act, and where there is an immediate and direct causal relationship, without the intervention of
some other source or agency, between the actions of the defendant and the victim's death. NRS 200.030(2), 200.070.
7. Homicide.
Defendant, whose child died from her husband's abuse rather than as immediate and direct consequence of defendant's neglect,
could not be convicted of second degree felony murder, though she was convicted of felony child neglect. NRS 200.030(2), 200.070,
200.508(1)(b), (2).
8. Homicide.
Implied malice for second degree murder was not established, in absence of evidence that defendant committed any affirmative act
that harmed her son or that she ever knew that her child was in serious or mortal danger prior to the time she telephoned for an
ambulance. NRS 193.190, 200.030(2).
OPINION ON REHEARING
Per Curiam:
In Labastida v. State, 112 Nev. 1502, 931 P.2d 1334 (1996), this court affirmed appellant
Kriseya J. Labastida's judgment of conviction of one count of second degree murder and one
count of felony child neglect. Labastida was sentenced to serve a term of life in the Nevada
State Prison with the possibility of parole for the murder and a consecutive term of twenty
years for child neglect. Labastida has petitioned this court for rehearing.
1
The state opposes
the petition.
__________

1
Two interested organizations, the National Association of State Vocal Organizations and the Committee to
Aid Abused Women, have submitted amicus curiae briefs on rehearing, together with motions for leave to file
the briefs. The state filed an opposition to the motions. Cause appearing, we grant the motions for leave to file
the proposed amicus curiae briefs. See NRAP 29. The clerk of this court shall file the previously received briefs
and the reply to the state's opposition.
state opposes the petition. As discussed below, we conclude that the prior majority opinion
misapprehended material matters of fact and law and that rehearing is warranted.
Accordingly, we grant rehearing and issue this opinion in the place of the previous decision in
this appeal.
2
See NRAP 40(c)(2).
The facts of this case are recounted in detail in the prior opinion. Labastida, 112 Nev. at
1504-09, 931 P.2d at 1335-39. Briefly, Michael Strawser, Labastida's husband, admitted to
abusing their infant son and testified that Labastida did not know what he was doing.
Labastida, Strawser and their infant child lived in a dark basement apartment. Although the
infant bore marks of abuse in various stages of healing, Strawser admitted that he committed
the most severe abuse, the abuse that caused death, in the last few days of the infant's life. To
silence the baby, Strawser stuck his finger down his throat while he abused him. This
ruptured the infant's throat, causing massive infection and ultimately death. Labastida called
for an ambulance when she noticed that the infant had stopped breathing. It was so dark that
when emergency personnel arrived, they had to take the infant to the kitchen to see. The
infant's body displayed multiple bruises, bitemarks, broken ribs and other injuries.
DISCUSSION
Among other things, Labastida contends on rehearing that the prior majority opinion of
this court: (1) misapprehended that sufficient evidence supported the jury's verdict; and (2)
misconstrued the law permitting a conviction of second degree murder under NRS 200.070.
Having revisited these issues, and for the reasons that follow, we now conclude that
Labastida's conviction of second degree murder must be reversed.
In the prior opinion, a majority of this court held that the jury could have properly drawn
alternative inferences from the evidence, and that based on these inferences, Labastida was
properly convicted of second degree murder. Specifically, the majority observed:
First, the jury could have found Labastida guilty of child abuse and first-degree murder
based upon the grounds that (1) she aided and abetted Strawser in the unlawful killing
by observing or being manifestly aware that Strawser was willfully causing the infant to
suffer dangerously severe and unjustifiable injury and pain as a result of abuse, and (2)
by doing nothing to stop this abuse when she was responsible for the child and it was
clearly possible for her to have taken preventive measures.
__________

2
We grant Labastida's motion of August 27, 1998, seeking permission to file supplemental authorities. The
clerk of this court shall file the authorities provisionally submitted with that motion.
for the child and it was clearly possible for her to have taken preventive measures. See
NRS 195.020; 200.030(1)(a); 200.508(1)(a). The jury could then have elected to give
Labastida the benefit of leniency based upon a finding that her involvement was much
less than that of Strawser. Under such circumstances, Labastida can hardly complain at
having been the recipient of the jury's mercy.
Labastida, 112 Nev. at 1509-10, 931 P.2d at 1339 (citations omitted). We have re-examined
this holding in light of relevant statutes, precedents of this court, the instructions given to the
jury, and the evidence in the record. We now conclude that the above-quoted language
erroneously proposed that the verdict of second degree murder could have resulted from a
finding of first degree murder tempered by a desire for leniency. Further, we conclude that the
evidence and the applicable law do not support a finding that Labastida directly committed
acts or aided and abetted Strawser in the commission of acts so as to warrant her conviction
of second degree murder. Cf. State v. Lindsey, 19 Nev. 47, 5 P. 822 (1882) (where the law
and facts establish murder in the first degree, defendant may not complain of jury verdict
finding defendant guilty of second degree murder).
First Degree Murder
NRS 200.030(1)(a) provides in pertinent part that [m]urder of the first degree is murder
which is . . . [p]erpetrated by means of . . . torture or child abuse, or by any other kind of
willful, deliberate and premeditated killing.
3
Child abuse for the purposes of this
subsection is separately defined in NRS 200.030(6)(a) as physical injury of a nonaccidental
nature to a child under the age of 18 years.
The jury instructions in this case accurately advised the jury of these provisions. In
accordance with those instructions, there were three separate theories under which the jury
could have considered Labastida's culpability for first degree murder, i.e., that with malice
aforethought: (1) she directly committed or aided and abetted Strawser in committing a
murder perpetrated by means of child abuse; (2) she directly committed or aided and abetted
Strawser in committing a murder perpetrated by means of torture; and (3) she directly
committed or aided and abetted Strawser in committing a willful, deliberate and premeditated
murder.
__________

3
The 1999 legislature amended NRS 200.030 by removing child abuse from the definition of first degree
murder set forth in subsection 1(a), and by including child abuse among the felonies stated in subsection 1(b) as
sufficient to support a conviction of first degree felony murder. The amendment does not affect this court's
disposition of this case.
More specifically, the jury was instructed pursuant to NRS 200.030(1)(a) that [m]urder of
the first degree is murder which is perpetrated by means of torture or child abuse or by any
other kind of willful, deliberate and premeditated killing. The instructions defined murder
as the unlawful killing of a human being, with malice aforethought, either express or
implied. [M]urder by child abuse was defined as an unlawful killing resulting from the
infliction of physical injury of a nonaccidental nature to a child under the age of 18 years.
We have carefully reviewed all of the instructions, and it is clear that the jury was not
instructed on the theory of first degree murder articulated in this court's prior majority
opinion. The instructions simply cannot be fairly read to advise the jury that it could find
Labastida guilty of first degree murder: if she aided and abetted Strawser in the unlawful
killing by observing or being manifestly aware of the abuse Strawser was inflicting on the
child, and by doing nothing to stop this abuse when she was responsible for the child and it
was clearly possible for her to take preventative measures. Therefore, the prior majority
opinion's conclusion that the jury could have found Labastida guilty of child abuse and first
degree murder on these grounds did not correctly reflect the instructions actually provided to
the jury.
[Headnotes 1, 2]
Moreover, on rehearing, we are no longer persuaded that the grounds set forth in the prior
majority opinion as justifying a finding of first degree murder correctly state the statutory
elements of first degree murder. The suggestion that one who is responsible for a child may
passively aid and abet first degree murder by observing and being manifestly aware of acts
of child abuse, and by doing nothing to stop this abuse when it is possible to take
preventative measures improperly merges concepts of abuse and neglect, and is
inconsistent with the elements of first degree murder defined in NRS 200.030(1)(a). As the
prior majority opinion recognizes, the terms abuse and neglect have distinctive meanings
and cannot be applied interchangeably.
4
The use of the term child abuse and not child
neglect in NRS 200.030{1){a) evinces the legislature's intent that different meanings
apply to the two terms and that a murder perpetrated by means of "child abuse," and not
"child neglect," constitutes first degree murder.
__________

4
On appeal, Labastida argued that her acquittal of child abuse required reversal of her child neglect
conviction on double jeopardy grounds. She contended in part that, under NRS 200.508, the terms abuse and
neglect are defined in the conjunctive and refer to the same conduct. The prior majority opinion held,
however, that NRS 200.508 criminalizes the abuse or neglect of children, and the jury did not err in finding,
based on the evidence or out of leniency, that Labastida's actions constituted neglect, but not abuse. Labastida,
112 Nev. at 1512-13, 931 P.2d at 1341 (emphasis added). Thus, the prior opinion clearly acknowledges a
distinction between child abuse and child neglect.
200.030(1)(a) evinces the legislature's intent that different meanings apply to the two terms
and that a murder perpetrated by means of child abuse, and not child neglect, constitutes
first degree murder. Thus, the definition of first degree murder set forth in the prior majority
opinion improperly expands the statutory elements of first degree murder to include a murder
perpetrated by means of child neglect. Accordingly, we are not willing to read NRS
200.030(1)(a) so as to define first degree murder to include a murder which is perpetrated by
means of child neglect. There is no statutory basis for doing so.
We also note that the jury specifically found Labastida not guilty of the separate crime of
child abuse causing substantial bodily harm in violation of NRS 200.508. This finding
provides an additional reason to disavow the prior opinion's conclusion that the jury could
have found Labastida guilty of first degree murder.
The jury was advised in Instruction No. 34:
NRS 200.508 provides: Any person who willfully causes a child who is less than
eighteen years of age to suffer unjustifiable physical pain or suffering as a result of
abuse or neglect or to be placed in a situation where the child may suffer physical pain
or mental suffering as a result of abuse or neglect is guilty of child abuse.
5

Instruction No. 28 provided:
Every person concerned in the commission of a felony, whether he or she directly
commits the act constituting the offense, or aids and abets in its commission, and
whether present or absent; and every person who, directly or indirectly, counsels,
encourages, hires, commands, induces or otherwise procures another to commit a
felony is a principal, and shall be proceeded against and punished as such.
Instruction No. 29 provided:
[T]he evidence must demonstrate that the Defendant knowingly and intentionally aided
and abetted another in the acts which resulted in death.
[Headnote 3]
Under the evidence presented in this case, the instructions respecting the separate offense
of child abuse in violation of NRS 200.508 necessarily encompassed the definition provided
to the jury of murder by child abuse. The jury acquitted Labastida of willfully committing or
aiding and abetting in the commission of any of the conduct defined in Instruction No. 34.
__________

5
Instruction No. 30 also advised: [t]he word willfully' when used in criminal statutes relates to an act or
omission which is done intentionally, deliberately, or designedly, as distinguished from an act or omission done
accidentally, inadvertently or innocently.
willfully committing or aiding and abetting in the commission of any of the conduct defined
in Instruction No. 34. Under these circumstances, we now conclude that it was inappropriate
for this court to speculate on appeal that the jury nonetheless could have found that she aided
and abetted Strawser in committing first degree murder.
Similarly, with respect to the theory that Labastida committed murder by torture, Jury
Instruction No. 22 advised:
The essential elements of murder by means of torture are: (1) the act or acts which
caused the death must involve a high degree or probability of death, and (2) the
defendant must commit such act or acts with the intent to cause pain or suffering for the
purpose of revenge, persuasion or for any sadistic purpose. The crime of murder by
torture does not necessarily require proof the defendant intended to kill the deceased
nor does it necessarily require any proof the decedent suffered pain.
The evidence presented below simply does not justify an assumption that the jury could
have found Labastida guilty of committing an act or acts with the intent to cause the child
pain or suffering and at the same time acquitted her of willfully causing the child to suffer
physical pain or mental suffering, either directly or by aiding and abetting Strawser.
[Headnotes 4, 5]
Our review of the record also reveals insufficient evidence to support a conviction of first
degree murder on the theory that Labastida directly committed or aided and abetted Strawser
in committing a willful, deliberate and premeditated murder. To find Labastida guilty of first
degree murder required more than a showing that her child died and that she was there. Such
a finding required proof beyond a reasonable doubt of every fact necessary to constitute the
crime charged. In re Winship, 397 U.S. 358, 364 (1970), cited in Martineau v. Angelone, 25
F.3d 734, 739 (9th Cir. 1994) (reversing Nevada conviction of felony child abuse for
insufficient evidence). As Justice Shearing's concurrence to the previous majority opinion
cogently argued, there is insufficient evidence in the record upon which the jury could have
found beyond a reasonable doubt that Labastida directly inflicted any injury on the child or
that she knowingly and intentionally aided and abetted Strawser. We agree with the
concurrence on this point. The evidence clearly established that Strawser, not Labastida,
personally inflicted the child's fatal injuries. Labastida's mere presence in the home, without
more, is insufficient as a matter of law to support her conviction as an aider and abettor. See
King v. State, 105 Nev. 373, 376, 784 P.2d 942, 94344 {19S9) {reversing convictions of
involuntary manslaughter of a child); see also Skinner v. Sheriff, 93 Nev. 340, 341, 566
P.2d S0, S1 {1977) {mere presence at the scene of a crime is insufficient to establish
guilt).
44 (1989) (reversing convictions of involuntary manslaughter of a child); see also Skinner v.
Sheriff, 93 Nev. 340, 341, 566 P.2d 80, 81 (1977) (mere presence at the scene of a crime is
insufficient to establish guilt). As the jury was instructed, the evidence must demonstrate
beyond a reasonable doubt that Labastida knowingly and intentionally aided and abetted
Strawser in the acts which resulted in death. With hindsight, one can say that she should have
known that her son was in mortal danger, but that is not the same as finding that she actually
knew, which is the finding necessary to support a conviction for aiding and abetting murder.
Thus, for these reasons, as well those previously specified in Justice Shearing's
concurrence to the original majority opinion, we now abandon the prior opinion's conclusion
that the jury's verdict of second degree murder could have been the product of a finding of
first degree murder tempered by a desire for leniency.
6
Rather, from our review of the record
it appears that the jury conscientiously followed the instructions and found that, pursuant to
those instructions, the evidence before it did not establish beyond a reasonable doubt that
Labastida directly committed or aided and abetted Strawser in committing first degree
murder.
Second Degree Murder
Instruction No. 27 advised the jury of the only remaining basis upon which it could have
returned a verdict of guilty of second degree murder in this case:
If the unlawful killing of a human being is done with malice aforethought, but without
deliberation and premeditation, that is, without the willful, deliberate and premeditated
intent to take life which is an essential element of first degree murder, or is not
perpetrated by means of torture, or child abuse, then the offense is murder in the second
degree.
In practical application this means that the unlawful killing of a human being with
malice aforethought, but without a deliberately formed and premeditated intent to kill,
is murder of the second degree when the killing results from an unlawful act, the
natural consequences of which are dangerous to life, which act is intentionally
performed by a person who knows that his conduct endangers the life of another, even
though the person has not specifically formed an intention to kill.
__________

6
We further reject the suggestion in the prior opinion that out of leniency the jury might have found that
Labastida's actions constituted the crime of child neglect, but not child abuse.
The legislature has defined the offense of felony child neglect, of which Labastida was
convicted, as an offense committed by a person who [i]s responsible for the safety or welfare
of a child who permits or allows that child to suffer unjustifiable physical pain or mental
suffering as a result of abuse or neglect or to be placed in a situation where the child may
suffer physical pain or mental suffering as a result of abuse or neglect and substantial bodily
or mental harm results.
7
NRS 200.508(1)(b), (2).
In the previous opinion, the majority ruled that the jury could have properly convicted
Labastida of second degree murder under NRS 200.070, based on her commission of felony
child neglect resulting in her son's death. The majority noted that in defining what is not
involuntary manslaughter, NRS 200.070 provides:
where the involuntary killing occurs in the commission of an unlawful act, which in its
consequences, naturally tends to destroy the life of a human being, or is committed in
the prosecution of a felonious intent, the offense is murder.
Labastida, 112 Nev. at 1510, 931 P.2d at 1339.
In Sheriff v. Morris, 99 Nev. 109, 118, 659 P.2d 852, 859 (1983), this court held that NRS
200.070 in conjunction with NRS 200.030(2)
8
permits a charge of second degree felony
murder, and that malice supporting a second degree murder conviction can be implied in such
a case. Having carefully reviewed this court's holding in Morris, however, we are no longer
persuaded that the evidence supports a conviction based on the narrow, limited scope of the
second degree felony murder rule as defined in Morris. Rather, we conclude that the
majority's previous analysis was not sufficiently attentive to the limitations announced in
Morrislimitations that were expressly and specifically designed to attenuate the potential
that the second degree felony murder rule has for untoward prosecutions. More specifically,
Morris states:
We are not unmindful of the potential for untoward prosecutions resulting from this
decision. We therefore emphasize that our holding today is limited to the narrow
confines of this case wherein we perceive an immediate and direct causal relationship
between the actions of the defendant, if proved, and the minor's demise. Further, . . . we
hold that a felony which would support the application of this second degree felony
murder rule, would have to be one which is inherently dangerous in the abstract.
__________

7
The jury was properly instructed on these statutory elements of child neglect causing substantial bodily
harm.

8
NRS 200.030(2) provides that all murders are of the second degree, except those murders specifically
identified in NRS 200.030(1) as of the first degree.
inherently dangerous in the abstract. There can be no deterrent value in a second
degree felony murder rule unless the felony is inherently dangerous since it is necessary
that a potential felon foresees the possibility of death or injury resulting from the
commission of the felony.
Id. (citations omitted) (emphasis added).
In defining the requirement for an immediate and direct causal relationship between the
actions of the defendant and the death of a victim, Morris further explains that [b]y the term
immediate' we mean without the intervention of some other source or agency. Id. at 118-19,
659 P.2d at 1339-40.
[Headnotes 6, 7]
Thus, under the narrow limits established in Morris, the second degree felony murder rule
applies only where the felony is inherently dangerous, where death or injury is a directly
foreseeable consequence of the illegal act, and where there is an immediate and direct causal
relationshipwithout the intervention of some other source or agencybetween the actions
of the defendant and the victim's death. Labastida's son did not die as an immediate and direct
consequence of Labastida's neglect, without the intervention of some other source or agency.
Rather, he died from Michael Strawser's abuse.
9
Consequently, the evidence supporting
Labastida's commission of felony child neglect in this case cannot support her second degree
murder conviction under this court's decision in Morris.
[Headnote 8]
We further conclude that insufficient evidence was presented to reasonably support a
finding of implied malice required for a second degree murder conviction even without
application of the second degree felony murder rule.
10
Labastida did not commit any
affirmative act that harmed her son. There is insufficient evidence that she ever knew that her
child was in serious or mortal danger prior to the time she telephoned for an ambulance.
Thus, there is insufficient evidence to support a reasonable inference that Labastida had
the criminal intent required for a conviction of murder.
__________

9
It is these factors which distinguish this case from this court's recent decision in Noonan v. State, 115 Nev.
184, 980 P.2d 637 (1999). In Noonan, this court concluded that Noonan's act of leaving a sixteen-month-old
child alone in a bathtub for twenty-five to thirty minutes [was] inherently dangerous and Noonan should have
foreseen the possibility of death or injury resulting. Id. at 189, 980 P.2d at 640. This court further perceived an
immediate and direct causal relationship between Noonan's acts and [the child's] demise. Id. Thus, unlike the
actions of Labastida in this case, the specific evidence of felony child neglect in Noonan was sufficient under
Morris to support a conviction of second degree felony murder.

10
In any event, given the manner in which Instruction No. 27 advised the jury, it appears that the jury could
not have returned a verdict of guilty of second degree murder without applying the second degree felony murder
rule.
insufficient evidence to support a reasonable inference that Labastida had the criminal intent
required for a conviction of murder. See NRS 193.190 (to constitute the crime charged there
must be unity of act and intent).
CONCLUSION
On rehearing we conclude that Labastida could not have been properly convicted of either
first or second degree murder.
11
Accordingly, we grant rehearing, we affirm Labastida's
conviction of felony child neglect, and we reverse her conviction of second degree murder.
12

____________
115 Nev. 308, 308 (1999) Abreu v. Gilmer
NANCY ABREU and ROY ABREU, Appellants, v. RACHEL J. GILMER, Respondent.
No. 31663
October 20, 1999 985 P.2d 746
Appeal from an order of the district court dismissing appellants' complaint for failure to
effect service of process pursuant to NRCP 4(i). First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Plaintiffs brought action to recover for injuries sustained in automobile accident, and
sought service by publication. The district court entered interlocutory order quashing service
for failure to exercise due diligence before resorting to service by publication, and dismissed
action for failure to timely effect service. Plaintiffs appealed, and the supreme court held that:
(1) plaintiffs had exercised due diligence in attempting service, and thus could resort to
service by publication, and (2) 26-day delay in effecting personal service was excused by
good cause.
Richard S. Staub, Carson City, for Appellants.
Laxalt & Nomura and Daniel T. Hayward, Reno, for Respondent.
__________

11
In light of this decision, we conclude that it is unnecessary to address Labastida's other contentions
respecting her conviction for second degree murder. Further, we reject her contentions on rehearing respecting
her conviction for child neglect.

12
This matter was submitted for decision prior to the expansion of the court from five to seven justices on
January 4, 1999. Only those justices remaining on the court at the time this petition was submitted for decision
1. Appeal and Error; Mandamus.
No appeal may be taken from an order quashing service of process; instead, petition for a writ of
mandamus is the only procedural vehicle to challenge a district court's order quashing service of process.
Appeal provided permissible method for review of matter in which trial court had quashed service of process, where court entered
a final order dismissing complaint which vested jurisdiction in appellate court. NRCP 4(i); NRAP 3A(b)(1).
Appellate court reviews determination whether due diligence was exercised in seeking personal service, as will allow resort to
service by publication, for an abuse of discretion. NRCP 4.
Order granting a motion to dismiss for failure to effect timely service of process is reviewed for an abuse of discretion.
5. Process.
There is no objective, formulaic standard for determining what is, or is not, due diligence in attempting to effect personal service,
as will allow resort to service by publication, and due diligence requirement is not quantifiable by reference to the number of service
attempts or inquiries into public records. Instead, due diligence is measured by the qualitative efforts of a specific plaintiff seeking to
locate and serve a specific defendant. NRCP 4(e)(1)(i).
6. Process.
Due diligence in attempting to effect personal service which must be pursued and shown before plaintiff may resort to service by
publication is that which is reasonable under the circumstances, and not all possible diligence which may be conceived, nor is it that
diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address of the
person on whom service is sought. NRCP 4(e)(1)(i).
7. Process.
Due diligence in attempting to effect personal service of process, as must be made before plaintiff may resort to service by
publication, must be tailored to fit the circumstances of each case, and is that diligence which is appropriate to accomplish the end
sought and which is reasonably calculated to do so. NRCP 4(e)(1)(i).
8. Process.
Plaintiffs exercised due diligence in attempting to make personal service of process on defendant in action arising from automobile
accident, and thus could resort to service by publication, where no police report was prepared following accident, parties exchanged
limited personal information with each other, defendant was a highly transient person whose whereabouts were not easily discoverable
through normal investigative means, and plaintiffs promptly attended personal service at address defendant allegedly provided, and at
second address obtained through a confidential source. NRCP 4(e)(1)(i).
9. Process.
Actual notice of a suit is not an effective substitute for service of process. NRCP 4.
10. Process.
While actual notice of a suit is not an effective substitute for service of process, receipt of actual notice of a complaint may be one
factor in determining if the plaintiff made reasonable, diligent efforts to effectuate service of process, as will
allow resort to service by publication.
determining if the plaintiff made reasonable, diligent efforts to effectuate service of process, as will allow
resort to service by publication. NRCP 4(e)(1)(i).
11. Process.
Plaintiffs' 26-day delay in personally serving defendant was excused by good cause, where plaintiffs had exercised due diligence in
attempting personal service which justified resort to service by publication, and publication was efficacious and completed within
120-day limit prescribed by rule. NRCP 4(e)(1)(i), (i).
OPINION
Per Curiam:
[Headnotes 1, 2]
This appeal challenges the district court's order dismissing appellants' complaint for failure
to serve respondent within 120 days after the complaint was filed, as required by NRCP 4(i).
Appellants also challenge an interlocutory order quashing service of process for failure to
exercise due diligence before resorting to service by publication. We conclude that the district
court abused its discretion when it granted respondent's motion to quash service of process,
and therefore erred when it granted respondent's motion to dismiss.
1
Accordingly, we reverse
the dismissal order and remand this matter to the district court for proceedings consistent with
this opinion.
FACTS
Appellants Nancy and Roy Abreu (the Abreus) were injured in an automobile accident
allegedly caused by respondent Rachel Gilmer. The parties exchanged addresses and
insurance information, and agreed not to call the police. According to the Abreus, Gilmer
reported that her address was 1150 Fir St., Reno, Nevada. There was no exchange of
birthdates, social security numbers, employers, or other identifying information.
After unsuccessful settlement negotiations with Gilmer's insurer, the Abreus filed a
personal injury complaint on May 14, 1997.
__________

1
This court has repeatedly held that no appeal may be taken from an order quashing service of process. See,
e.g., Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976). Instead, a petition for a writ of
mandamus is the only procedural vehicle to challenge a district court's order quashing service of process. Id. In
this case, the district court entered a final order dismissing the complaint pursuant to NRCP 4(i), and jurisdiction
is therefore properly vested in this court. See NRAP 3A(b)(1); Levine v. Remolif, 80 Nev. 168, 390 P.2d 718
(1964) (holding that this court will review the propriety of interlocutory orders, after a final judgment has been
entered, if the alleged errors are properly raised in the opening brief).
insurer, the Abreus filed a personal injury complaint on May 14, 1997. The Abreus sent a
courtesy copy of the summons and complaint to Gilmer's insurer, and delivered the
documents to process server Tom Jeffers for service on Gilmer.
Jeffers attempted service on June 5, 1997, at the Fir Street address, but learned that no
such address existed. He then returned to Fir Street a second time to confirm that the address
did not exist. Additionally, Jeffers consulted the telephone company's directory assistance to
locate Gilmer, but was unsuccessful. Through a confidential source, Jeffers learned that
Gilmer may have been residing with her mother-in-law at 1114 Greenbrae Drive in Sparks.
Jeffers made three attempts to serve Gilmer at this address. Although Jeffers attempted
service during the day and evening, on each occasion he did not find anyone home.
On July 1, 1997, the Abreus' attorney contacted Gilmer's insurer and requested Gilmer's
address. The insurer refused to provide Gilmer's address. On July 2, 1997, an attorney called
the Abreus' attorney and stated that he would be representing Gilmer on behalf of the insurer.
The attorney requested a copy of the summons and complaint, but refused to accept service of
process for Gilmer or provide any other assistance to the Abreus' attorney. The Abreus'
attorney informed Gilmer's putative attorney that the Abreus would resort to service by
publication if Gilmer could not be found. According to the Abreus, the attorney
acknowledged this possibility and asked that he be advised when publication began.
A few days later, the Abreus' attorney called Gilmer's putative attorney, but the attorney
was not available. The Abreus' attorney then told the attorney's secretary that if the attorney
would not accept service of process, the Abreus would proceed with publication. The
secretary called the Abreus' attorney later that day and told him to go ahead and publish
service of process.
On July 29, 1997, the Abreus filed an affidavit of due diligence and an affidavit for
publication of the summons and complaint. On August 6, 1997, the district court entered an
order allowing service by publication. On September 17, 1997, the Abreus filed an affidavit
that service by publication had been completed.
2

Gilmer immediately filed a motion to quash service of process, in which she argued that
the Abreus failed to exercise due diligence before resorting to service by publication. Gilmer
also provided her current address in the motion to quash. Based upon this information, the
Abreus obtained a new summons and personally served Gilmer on October 7, 1997.
__________

2
Pursuant to NRCP 4(e)(1)(iii), the service was deemed completed on September 10, 1997, less than 120
days after the complaint was filed.
served Gilmer on October 7, 1997. Thus, personal service occurred 146 days after the
complaint was filed.
On October 20, 1997, Gilmer filed a motion to dismiss pursuant to NRCP 4(i) because the
complaint had not been personally served within 120 days after it was filed. Gilmer argued in
her motion that the Abreus could not demonstrate good cause for the untimely service of
process. The Abreus opposed the motion by arguing that Jeffers' diligent efforts to locate and
personally serve Gilmer constituted good cause for the 26-day delay in personal service.
On November 14, 1997, the district court conducted a hearing on the motion to quash
service of process.
3
Gilmer testified that at the time of the accident, she was living with her
mother at 11590 Fir Street in Lemmon Valley, Nevada (not at 1150 Fir Street in Reno, where
Jeffers first attempted service). Between the time of the accident and the date of the hearing,
over a period of 30 months, Gilmer had lived at six different locations. Gilmer lived at the
Greenbrae address (with her mother-in-law) until June 1, 1997, and lived in Washoe Valley
during the time Jeffers attempted to locate and serve her.
Although Gilmer testified that she was listed in the telephone directory under R & R
Gilmer, she did not testify that the number listed was her telephone number when Jeffers
was attempting to locate her, nor did she provide any explanation for Jeffers' inability to
obtain her telephone number from directory assistance. Finally, Gilmer testified that she
would never have given her address to someone who called and asked for it.
The district court indicated at the hearing that it would grant the motion to quash because
the Abreus failed to exercise due diligence, as set forth in Gassett v. Snappy Car Rental, 111
Nev. 1416, 906 P.2d 258 (1995), before serving Gilmer by publication. The district court's
written order granted the motion to quash by simply determining that the Abreus failed to
exercise due diligence. By subsequent order, the district court found that the Abreus failed to
demonstrate good cause for failing to complete service within the 120-day period prescribed
by NRCP 4(i), and it therefore dismissed the complaint.
DISCUSSION
[Headnotes 3, 4]
This court reviews due diligence determinations for an abuse of discretion. See, e.g.,
Browning v. Dixon, 114 Nev. 213, 954 P.2d 741 (1998). An order granting a motion to
dismiss for failure to effect timely service of process is also reviewed for an abuse of
discretion.
__________

3
Gilmer's motion to dismiss for untimely service had not been fully briefed, and it was not discussed at the
hearing on the motion to quash.
effect timely service of process is also reviewed for an abuse of discretion. See Lacey v.
Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993).
Service by publication is authorized by NRCP 4(e)(1)(i), which provides in relevant part:
When the person on whom service is to be made resides out of the state, or has departed
from the state, or cannot, after due diligence, be found within the state . . . [the] court
or judge may grant an order that the service be made by the publication of summons.
(Emphasis added.)
This court has analyzed the due diligence requirement on a number of occasions. See
Browning v. Dixon, 114 Nev. 213, 954 P.2d 741 (1998) (holding that the plaintiff failed to
exercise due diligence by ignoring other reasonable means of locating the defendant such as
the defendant's known employer and insurer);
4
Gassett v. Snappy Car Rental, 111 Nev.
1416, 906 P.2d 258 (1995) (holding that the plaintiff failed to exercise due diligence, partly
because it made no attempt to locate the defendant through her known attorney); Price v.
Dunn, 106 Nev. 100, 787 P.2d 785 (1990) (holding that although the plaintiff technically
complied with the rule, she ignored other reasonable means of locating and serving the
defendant).
[Headnotes 57]
Despite our previous decisions on this issue, we note that there is no objective, formulaic
standard for determining what is, or is not, due diligence. The due diligence requirement is
not quantifiable by reference to the number of service attempts or inquiries into public
records. Instead, due diligence is measured by the qualitative efforts of a specific plaintiff
seeking to locate and serve a specific defendant. As the Utah Supreme Court recognized:
The diligence to be pursued and shown . . . is that which is reasonable under the
circumstances and not all possible diligence which may be conceived. Nor is it that
diligence which stops just short of the place where if it were continued might
reasonably be expected to uncover an address . . . of the person on whom service is
sought. . . . Due diligence must be tailored to fit the circumstances of each case. It is
that diligence which is appropriate to accomplish the end sought and which is
reasonably calculated to do so.
Parker v. Ross, 217 P.2d 373, 379 (Utah 1950).
__________

4
Although Browning involved the due diligence requirement under NRS 14.070(2), our analysis of what
constituted due diligence is applicable to disputes arising out of NRCP 4(e)(1)(i).
[Headnote 8]
In light of our underlying policy to have each case decided upon its merits, Christy v.
Carlisle, 94 Nev. 651, 654, 584 P.2d 687, 689 (1978), we conclude that, under the specific
facts presented here, the district court abused its discretion when it found that the Abreus
failed to exercise due diligence before serving Gilmer by publication. The Abreus' efforts
were appropriate and reasonably calculated to accomplish service on Gilmer.
[Headnotes 9, 10]
In this case, no police report was prepared, and the parties exchanged limited personal
information with each other. Moreover, Gilmer was a highly transient defendant whose
whereabouts were not easily discoverable through normal investigative means. The Abreus
promptly attempted personal service at the address Gilmer allegedly provided, and attempted
to serve Gilmer at an address obtained through a confidential source. We further note that the
Abreus' efforts to locate and serve Gilmer through Gilmer's known insurer and putative
attorney were, in this instance, components of the due diligence inquiry.
5
Although the
insurer and attorney were not obligated to assist the Abreus in serving Gilmer, we note again
that the Abreus' efforts in this regard were reasonable and calculated to afford Gilmer her
fundamental right to due process. Price, 106 Nev. at 103, 787 P.2d at 787. In sum, we
conclude that the Abreus made genuine efforts to locate and serve Gilmer, and therefore
exercised due diligence before resorting to service by publication.
[Headnote 11]
Because service by publication was efficacious and completed within the 120-day limit
prescribed by NRCP 4(i), we also conclude that the district court erred when it found that the
26-day delay in personally serving Gilmer was not excused by good cause. Accordingly, we
reverse the order of the district court and remand this matter to the district court for
proceedings consistent with this opinion.
__________

5
We reiterate, however, that actual notice of a suit is not an effective substitute for service of process. See
C.H.A. Venture v. G.C. Wallace Consulting, 106 Nev. 381, 794 P.2d 707 (1990). Nevertheless, as is
demonstrated in this case, receipt of actual notice of a complaint may be one factor in determining if the plaintiff
made reasonable, diligent efforts to effectuate service of process.
____________
115 Nev. 315, 315 (1999) State, Dep't Mtr. Veh. v. Kuemmerlin
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. KEVIN JOHN KUEMMERLIN, Respondent.
No. 32261
October 20, 1999 985 P.2d 750
Appeal from a district court order granting judicial review and reinstating respondent's
driving privileges. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Motorcyclist who was injured in accident which occurred while he was operating
motorcycle in federal park sought judicial review of revocation of his driving privileges by
Department of Motor Vehicles and Public Safety, which occurred after blood sample revealed
blood alcohol content in excess of legal limit. The district court granted review and reinstated
privileges. Department appealed, and the supreme court held that implied consent law applied
and required revocation, even though accident occurred in federal park.
[En banc reconsideration denied November 16, 1999]
Frankie Sue Del Papa, Attorney General, and Liesl Freedman, Deputy Attorney General,
Carson City, for Appellant.
John Glenn Watkins, Las Vegas, for Respondent.
Automobiles; States.
Implied consent law applied to motorcyclist who was injured in accident which occurred while he was
operating motorcycle within federal park, and required revocation of his license after blood sample
revealed that motorcyclist had blood alcohol content in excess of legal limit. NRS 484.385(2).
OPINION
Per Curiam:
This is an appeal from a district court order granting judicial review and reinstating
respondent's driving privileges.
1
Appellant, the Department of Motor Vehicles and Public
Safety {DMV), contends the district court erred as a matter of law in failing to follow
controlling case law: specifically, State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, S74
P.2d 1247 {1994).
__________

1
On August 10, 1999, we issued an order reversing the district court's order and remanding for reinstatement
of the agency decision to revoke respondent's driving privileges. On August 23, 1999, appellant moved for
publication of our unpublished order as an opinion, and on August 26, 1999, respondent petitioned for rehearing.
Cause appearing, we grant the motion to
the Department of Motor Vehicles and Public Safety (DMV), contends the district court erred
as a matter of law in failing to follow controlling case law: specifically, State, Dep't of Mtr.
Vehicles v. Lovett, 110 Nev. 473, 874 P.2d 1247 (1994). We agree.
On January 19, 1997, federal park ranger Michael Blandford was dispatched to a traffic
accident involving a motorcycle on Callville Bay access road in the Lake Mead National
Recreational Area (LMNRA). Both individuals on the motorcycle were injured, so a life
flight helicopter was called. Respondent Kevin Kuemmerlin, whose eyes were red and watery
and whose breath smelled of alcohol, admitted he was the driver of the motorcycle. At the
hospital, Ranger Blandford informed Kuemmerlin that Kuemmerlin was required under the
Nevada implied consent law to give a blood sample because the accident involved injuries.
Upon receipt of test results indicating Kuemmerlin's blood alcohol content (0.16%) exceeded
the legal limit, Ranger Blandford sent the DMV an officer's certification of cause, and the
DMV revoked Kuemmerlin's driver's license. See NRS 484.385(2). A hearing officer upheld
the revocation, but the district court granted Kuemmerlin's petition for judicial review and
reversed. The court concluded the Nevada implied consent law did not apply because
Kuemmerlin was driving entirely within a federal park, so federal law preempted state law
and the DMV lacked jurisdiction.
The district court's conclusions are contrary to this court's decision in Lovett, a factually
similar case. In that case, a park ranger arrested Lovett for driving under the influence of
alcohol in the LMNRA. Although the ranger initiated the stop within park boundaries, Lovett
did not stop until he was outside the federal park. Lovett refused to take an evidentiary test,
so the ranger completed an officer's certification of cause, served Lovett with a notice of
revocation and as an agent of the DMV seized Lovett's license. A hearing officer upheld the
revocation, but the district court granted Lovett's petition for judicial review, reversed the
hearing officer and reinstated Lovett's driving privileges. Lovett, 110 Nev. at 475, 874 P.2d at
1248-49. The DMV appealed, and we reversed.
In Lovett, we rejected the same arguments Kuemmerlin raised at the district court's hearing
on his petition for judicial review. And although Kuemmerlin never left the park, whereas
Lovett did not stop his vehicle until he was outside the park, our decision in Lovett did not
rest on the fact that Lovett drove outside park boundaries.
__________
publish our order, and we issue this opinion in place of our order of remand filed August 10, 1999. We deny the
petition for rehearing; NRAP 40(c)(1) expressly provides that matters presented in the briefs may not be
reargued in a petition for rehearing.
Lovett did not rest on the fact that Lovett drove outside park boundaries. We decided that
federal park service rangers are police officers within the meaning of the Nevada statute
defining that term, and that they may therefore be considered agents of the DMV in revoking
a Nevada driver's license. Id. at 476-77, 874 P.2d at 1249-50. We noted that construing the
provision to include federal officers as police officers advances this state's goal of keeping
drunk drivers off this state's streets. Id. at 477, 874 P.2d at 1250. We also decided that federal
regulations governing traffic in federal parks do not preempt state implied consent and license
revocation provisions. Id. at 478-80, 874 P.2d at 1250-51. Thus, the revocation of Lovett's
license was proper. Id. at 480, 874 P.2d at 1251.
Applying Lovett to this case, we conclude the revocation of Kuemmerlin's license was also
proper, and the district court erred in deciding otherwise. Accordingly, we reverse the district
court order granting judicial review and reinstating Kuemmerlin's driving privileges and
remand to the district court. Upon remand, the district court shall issue an order reinstating
the order of the DMV hearing officer upholding the revocation of Kuemmerlin's license.
___________
115 Nev. 317, 317 (1999) Lincoln v. State
CLIFF THELBERT LINCOLN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30422
November 29, 1999 988 P.2d 305
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of lewdness
with a minor. Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Defendant was convicted following jury trial in the district court on charge of lewdness
with a minor arising from molestation of three-year-old daughter. Defendant appealed. The
supreme court held that: (1) error in not holding a hearing outside jury's presence to determine
trustworthiness of hearsay statements by daughter was harmless, and (2) naval social worker's
testimony concerning statements by defendant was admissible.
Affirmed.
Michael R. Specchio, Public Defender, and Jennifer Lunt, Cheryl Bond, and John Reese
Petty, Deputy Public Defenders, Washoe County, for Appellant.
Attorney, and Gary Hatlestad, Chief Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Failure to hold hearing outside presence of jury to determine trustworthiness of hearsay statements by
defendant's minor daughter was error in prosecution arising from alleged molestation of daughter. NRS 51.385.
2. Criminal Law.
Error in not holding a hearing outside jury's presence to determine trustworthiness of hearsay statements by defendant's minor
daughter was harmless in prosecution arising from alleged molestation of daughter, where statements in question included a
tape-recording of daughter's responses to her mother's questions, State elicited testimony from mother as to how daughter had
responded to questions and what her body language had been, daughter was State's first witness and was fully cross-examined, and
defendant signed a confession. NRS 51.385.
3. Criminal Law.
Naval social worker's testimony concerning statements by defendant during counseling session that occurred shortly after
defendant signed confession was admissible in prosecution for lewdness with a minor, where social worker informed defendant that
although conversation would be private, she was required by law to report any incidence of child abuse. NRS 49.252.
4. Criminal Law.
Supreme court would decline to consider alleged error of trial court, in prosecution arising from defendant's alleged molestation of
three-year-old daughter, in not making a determination as to daughter's competency to testify, where defendant did not request voir dire
examination of daughter and did not raise an objection to daughter's competency with trial court.
OPINION
Per Curiam:
Appellant Cliff Thelbert Lincoln (Lincoln) and Trilby Lyn Richardson (Richardson) were married in June 1988. The couple had
three daughters together, one of whom was the three-year-old victim in this case. Lincoln and Richardson divorced in October 1992. At the
time of the divorce, Richardson resided in New Mexico. Lincoln was in the Navy and stationed in Virginia. The divorce agreement
prohibited either parent from taking the children out of their state of residence without permission from the other parent.
In the first half of 1993, Lincoln gave Richardson a Ford Bronco that the couple had owned during their marriage. In June 1993,
Richardson was cleaning the Bronco when she discovered a motel and credit card receipt from Reno, Nevada.
1993, Richardson was cleaning the Bronco when she discovered a motel and credit card
receipt from Reno, Nevada. The dates on the receipts were from a period in December 1992,
when Lincoln had the three daughters for visitation. Richardson became angry because the
receipts revealed that Lincoln had been out of state with the girls, against her specific
instructions. Lincoln lived in Sacramento, California, during this period. Richardson had
planned to visit relatives in the Sacramento area for Christmas in 1992. When Lincoln had the
girls during the Christmas vacation, he took them to Reno, Nevada, without Richardson's
knowledge or permission.
Richardson then spoke with her mother and her attorney about her discovery that Lincoln
had taken the children out of state without her permission or knowledge. Richardson also
spoke with her oldest daughter, the victim, to see if she remembered bright lights or anything
that might resemble Reno, Nevada. Richardson tape-recorded this conversation so her
attorney could hear what the victim said.
Richardson later testified at trial that she was surprised by the victim's responses.
Richardson testified that when she started questioning the victim, the victim would curl up in
a ball, stick her finger in her mouth, and talk like a baby, which was uncharacteristic for the
victim. Instead of describing bright lights, as Richardson expected, the victim said that
Lincoln's pee-pee had come to get her and the victim then rolled over and pointed to her
bottom.
Several times during this conversation, the victim denied that Lincoln had touched her.
Richardson continued to question the victim about whether Lincoln had touched her.
Richardson believed that the victim's body language and tone of voice indicated that the
victim was revealing that she merely did not want to talk about it, not that the incident did not
happen.
Richardson then contacted authorities within the military. During an interview with
military authorities, the victim's story remained consistent. The victim was then taken for a
vaginal and rectal exam.
Subsequently, Richardson had a telephone conversation with Lincoln, who was stationed
in Virginia. Military authorities had spoken to Lincoln about the alleged incident. Richardson
asked Lincoln if he did it. Lincoln said he did not do it. About one week later, Richardson
and Lincoln spoke on the telephone again. According to Richardson's testimony, she again
asked Lincoln, Did you do it? This time Lincoln said, Yes.
On September 17, 1993, Naval Military Police Officer Robert Dortch (Dortch)
interrogated Lincoln. Lincoln then signed a confession, prepared by Dortch, detailing the
molestation of the victim.
victim. Lincoln testified at trial that he signed the confession because he believed it was the
only way he would be permitted to leave. However, Lincoln initialed six separate lines on the
confession, indicating that he understood his rights. One of these lines specifically
acknowledged that Lincoln could terminate the interview at any time, for any reason.
Lincoln also spoke with counselors after the confession. Notes from one counselor reveal
that Lincoln told the counselor that the event was a blur. Lincoln claimed that he had not
had anything to drink and that he blacked out. Lincoln's statements to several other health
professionals indicated a similar lack of clarity or haziness of memory over the alleged
molestation.
However, shortly after signing the confession, Lincoln was tearful and distraught when he
went to speak with naval social worker Amy Barron (Barron). Prior to their conversation,
Barron informed Lincoln that while their conversation would be private, she was required by
law to report any incidence of child abuse, among other things. Lincoln stated to Barron that
he wished it never happened, that he was sorry for it, [and] that he was going to have to face
it. Lincoln never specifically told Barron what he meant by it.
Lincoln was tried and convicted of lewdness with a minor. He was sentenced to four years
in prison, suspended, and placed on probation for an indeterminate period of time, not to
exceed sixty months.
[Headnotes 1, 2]
Lincoln first contends that the district court committed reversible error by not holding the
requisite hearing outside the presence of the jury to determine the trustworthiness of the
child-victim's hearsay statements. While we agree that the district court erred, we conclude
that the error was harmless.
The hearing requirement is found in NRS 51.385 and provides in relevant part:
1. In addition to any other provision for admissibility made by statute or rule of court,
a statement made by a child under the age of 10 years describing any act of sexual
conduct performed with or on the child is admissible in a criminal proceeding regarding
that sexual conduct if the:
(a) Court finds, in a hearing out of the presence of the jury, that the time, content and
circumstances of the statement provide sufficient circumstantial guarantees of
trustworthiness; and
(b) Child either testifies at the proceeding or is unavailable or unable to testify.
We have previously concluded that irrespective of objection by opposing counsel or
confrontation of the victim, failure to hold a trustworthiness hearing pursuant to NRS
51.385 warrants reversal and requires a new trial. See Quevedo v. State, 113 Nev. 35, 38, 930
P.2d 750, 751 (1997); Lytle v. State, 107 Nev. 589, 591, 816 P.2d 1082, 1083 (1991). Both
Quevedo and Lytle involved testimony from adults as to statements made to them by the
victims. The child-victim testified in both cases. Neither Quevedo nor Lytle involved a
confession by the defendant.
While Quevedo and Lytle applied a strict rule of automatic reversal for the violation of
NRS 51.385, we have nevertheless applied a harmless error analysis in this situation. In Brust
v. State, 108 Nev. 872, 877, 839 P.2d 1300, 1302 (1992), the hearsay statements consisted of
the victim's own videotaped statements to a psychologist. The child-victim had already
testified and been cross-examined when the tape was introduced. See id. at 877, 839 P.2d at
1303. Furthermore, the defendant had confessed to molesting the victim. See id. at 874, 839
P.2d at 1301.
In considering the defendant's confession and the fact that the district court had heard the
victim's testimony before the hearsay statements were introduced, we reasoned that while the
district court erred in not holding a trustworthiness hearing, it was harmless error under
those particular circumstances. See id. at 877, 839 P.2d at 1303. We distinguished that case
from Lytle, noting that the district court in Brust knew what to expect from the videotaped
interview; hence, the statements were merely repetitive. See id. at 876-77, 839 P.2d at 1303.
In Lytle, the district court admitted hearsay statements from five separate witnesses without
prior knowledge of the content of the testimony. See Lytle, 107 Nev. at 590, 816 P.2d at 1083.
In the present case, the hearsay statements included the tape-recording of the victim's
responses to Richardson's questions. The State also elicited testimony from Richardson as to
how the victim had responded to her questioning and what the victim's body language was
during the questioning. The victim was the State's first witness and was fully cross-examined
by the defense. Finally, Lincoln signed a confession. Accordingly, we conclude that any error
was harmless and, therefore, affirm Lincoln's conviction.
[Headnote 3]
Lincoln next asserts that the district court erred by admitting the testimony of naval social
worker Barron. Lincoln argues that the conversation between himself and Barron was
privileged under NRS 49.252.
NRS 49.252 provides that confidential communications between a client and his social
worker are privileged. Lincoln relies on our holding in Alward v. State, 112 Nev. 141, 912
P.2d 243 {1996), in support of his contention.
relies on our holding in Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996), in support of his
contention. In Alward, although the counselor did not meet the definition of a social
worker, we concluded that the communications were inadmissible because the situation
created the appearance of confidentiality. Id. at 157, 912 P.2d at 253-54.
In the present case, Lincoln argues that Barron informed him that their conversation was
private. Thus, the communications were privileged. We disagree.
We conclude that the present case is distinguishable from Alward. While Alward involved
a situation where the client had no reason to believe that his communications would not be
confidential, Barron specifically told Lincoln that she would have to disclose any intimation
of child abuse. Hence, any subsequent communication cannot have carried with it an
expectation of confidentiality. Therefore, we conclude that the district court did not err in
admitting Barron's testimony.
[Headnote 4]
Lincoln also argues that the district court erred by not making a determination as to the
victim's competency to testify. At trial, Lincoln did not request a voir dire examination of the
victim, nor did Lincoln raise an objection with the district court as to the victim's
competency. We have held that the issue of a juvenile witness's competency was barred from
review by the failure to request a voir dire examination and the failure to object at trial to the
witness's competency. See Griego v. State, 111 Nev. 444, 448, 893 P.2d 995, 998 (1995)
(citing Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991)). Accordingly, we
decline to review this issue.
For these reasons, we affirm Lincoln's conviction in all respects.
____________
115 Nev. 323, 323 (1999) Medical Device Alliance, Inc. v. Ahr
MEDICAL DEVICE ALLIANCE, INC., Appellant, v. ROBERT AHR, an Individual;
ANTOINETTE AHR, an Individual; RICHARD ALBIN, an Individual; DONNA
ALBIN, an Individual; NICHOLAS ALEXANDER, Trustee; GLENN ALPERT,
Trustee; GREGORY ANDERSON, an Individual; ANTIN & HAAS; LESTER
AROH, an Individual; KENNETH ASCH, an Individual; JULIAN BEALE, an
Individual; RICHARD BERTI, an Individual; MARGUERITE BERTI, Trustee;
FREDERICK BINKLEY, Trustee; MICHAEL BOGGS, an Individual; DONALD
BORDEN, an Individual; JEFFREY BRENNER, an Individual; BELLE BRONFELD,
an Individual; LARRY BRUNGARDT, an Individual; WILLIAM COLEMAN
BRYAN, an Individual; CABRILLO CARD. MED. GP. (R. ROTHCHILD); JOSEPH
CAMARDESE, an Individual; CHELSEA ASSOCIATES (RANDALL HARRIS);
WARREN CLARK, an Individual; ROBERT CLARK, an Individual; HAROLD
COHEN, an Individual; WILLIAM CONLEY, an Individual; TED COOPER, an
Individual; SEAN COUGHLIN, an Individual; KANAAN KENNY DANDACHI,
an Individual; THOMAS DEAKMAN, an Individual; STEVEN DRESNER, an
Individual; LAWRENCE DUMAIN, an Individual; DEANNA DUMAIN, an
Individual; JAMES JIM FAYETTE, an Individual; MARK FERGUSON, an
Individual; STEPHEN FROST, an Individual; SUZANNE FROST, an Individual;
EDWARD I. GALFSKY, an Individual; JOHN GASSER, an Individual; ROBERT
GAULT, an Individual; THELMA GAULT, an Individual; DARRELL GLAHN, an
Individual; BLYTHE GLAHN, an Individual; MICHAEL GROSSMAN, an
Individual; BRIAN HALINA, an Individual; KATHLEEN HELLMERS, Trustee;
KENNETH HERSH, an Individual; HILLIARD LTD. PARTNERSHIP; DANIEL
HILLIARD, an Individual; WJ HILLIARD FAMILY TRUST; SY HIMELSTEIN, an
Individual; INNER SOURCES, INC.; MIKE ISMAIL, an Individual; HERB
JOHNSON, an Individual; BRENDA JOHNSON, an Individual; GABRIEL
KAPLAN, an Individual; L. ROLLS (NOMINEES) LTD. (L. ROLLS); WILLIAM
LARRABEE, an Individual; BONNIE LARRABEE, an Individual; PETER
LAWRENCE, an Individual; MARK LEGGIO, an Individual; LEVANTHAL PAGET
LLC, an Individual; JAMES LYNCH, an Individual; EDWARD MARANDOLA, JR.,
an Individual; FILIZI PHILIP MATHIS, an INDIVIDUAL;
Individual; FRANK MATHIS, an Individual; ROBERT McCURDY, an Individual;
EDWARD LOW MILLS, an Individual; JAMES MILLS, an Individual; MICHAEL
MOELLER, an Individual; ALBERT MOLINARO, an Individual; STEVE NATALE,
an Individual; KAY NIX, an Individual; LINDA WALLACE PATE, an Individual;
ROBERT PEKELNICKY, an Individual; EMILY PEKELNICKY, an Individual; JON
PETERS, an Individual; ALICE POSHKUS, an Individual; REGINA POSHKUS, an
Individual; NICHOLAS POSHKUS, an Individual; DAVID B. RADDEN, an
Individual; RICHARD ROSSI, an Individual; JAMES SCHLOEMAN, an Individual;
DAVID A. SCHULT, an Individual; JEFF SEAVEY, an Individual; MORRIS
SILVER, an Individual; HOLLIS R. SMITH, an Individual; LEMBITU SORRA,
M.D., an Individual; ARTHUR STEINBERG, an Individual; IRA ACCOUNT; CARL
F. STEINFIELD, an Individual; KEN STOKES, an Individual; THOMAS
SULZBACH, an Individual; EUNA SULZBACH, an Individual; ROBERT E.
WALKER, an Individual; DAVID WILSON, an Individual, Plaintiffs; CHIEFTAIN
LLC, WILLIAM J. DOWNEY, JR., an Individual; MARY ANN FLYNN, an
Individual; R. KARL LICHTY, an Individual; LAURENS L. LICHTY, an Individual;
LEONARD MAKOWKA, an Individual; AND KURT G. TOPPEL, an Individual,
Respondents.
No. 34586
November 29, 1999 988 P.2d 308
Motion to dismiss appeal based on lack of jurisdiction. Eighth Judicial District Court,
Clark County; Nancy M. Saitta, Judge.
Shareholders who had brought suit against corporation moved for appointment of
temporary receiver for corporation. The district court granted motion. Corporation appealed,
and shareholders moved to dismiss. The supreme court held that corporation had standing to
bring appeal, through its board of directors, of order appointing receiver.
Motion denied.
William E. Cooper Law Offices, Las Vegas, for Appellant.
James, Driggs, Walch, Santoro, Kearny, Johnson & Thompson and John E. Ham and
Aviva Y. Gordon, Las Vegas, for Respondents.
Appellate rules restrict appeals to those sought by aggrieved parties. NRAP 3A(a).
Corporation had standing to bring appeal, through its board of directors, from order which granted shareholders' motion for
appointment of receiver in action brought by shareholders against corporation. NRAP 3A.
Where a receiver is appointed to oversee the operations of a corporation, the corporation is the aggrieved party, and has a right to
appeal from that order. NRAP 3A.
It is not necessary that a receiver authorize an appeal by a corporation claiming to be aggrieved by the order appointing the
receiver if the corporation is a party of record to the proceedings from which the appeal is taken. NRAP 3A.
OPINION
Per Curiam:
This is an appeal from an order of the district court appointing a temporary receiver over
the appellant corporation.
On March 19, 1999, respondents, some of the shareholders of appellant Medical Device
Alliance (MDA), filed a complaint in Eighth Judicial District Court, and filed a motion
seeking the appointment of a temporary receiver for MDA. See NRS 78.650. In the motion,
respondents argued that the directors of MDA had engaged in improper conduct. On June 30,
1999, after a hearing, the district court granted the motion and appointed a temporary
receiver. The district court made an express finding that the directors of MDA have been
guilty of fraud, collusion or gross mismanagement, as well as misfeasance, malfeasance or
nonfeasance, and that the assets of the corporation were in danger of waste, sacrifice or loss
through attachment, foreclosure, or litigation. On July 26, 1999, appellant filed a timely
notice of appeal.
[Headnotes 1, 2]
On September 2, 1999, respondents filed a motion to dismiss the appeal, and an opposition
was filed on September 13, 1999. Respondents make two arguments that the attorney who
purports to represent MDA in this appeal lacks standing to pursue the appeal. First, they
contend that the receiver did not authorize appellant's attorney to file the notice of appeal,
because the order that the district court entered gave the receiver the sole power to institute
actions in court.
institute actions in court. Second, they maintain that the appellant, MDA, is not an aggrieved
party. The rules of this court restrict appeals to those sought by aggrieved parties. See NRAP
3A(a); see also Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 874 P.2d 729 (1994)
(explaining that this court has jurisdiction to entertain an appeal only where the appeal is
brought by an aggrieved party). Here, respondents urge that only the former board of directors
is seeking the instant appellate review, not the corporation, which is represented by the
receiver. Their argument is that the corporation was a party below, but is not aggrieved, and
that the former board of directors may be aggrieved, but were not parties below.
[Headnotes 3, 4]
We conclude that the corporation has standing to appeal through the board of directors.
This court's rules provide for an appeal from an order appointing a receiver. See NRAP
3A(b)(2). Where a receiver is appointed to oversee the operations of a corporation, the
corporation is the aggrieved party and has a right to appeal from that order. See Luckenbach
v. Laer, 212 P. 918, 920 (Cal. 1923). This court has previously entertained such an appeal by
a corporation from an order appointing a receiver. See Nishon's Inc. v. Kendigian, 91 Nev.
504, 538 P.2d 580 (1975). The corporation is aggrieved because its normal operations and
processes pursuant to its articles of incorporation and bylaws have been disrupted by the
receiver's appointment. See NRAP 3A(a). Although it may be argued that the corporation is
not aggrieved because the order appointing a receiver is in its best interests, such an argument
assumes the proposition that this appeal is intended to decide, specifically, whether the
district court's appointment of a receiver was proper under the circumstances. Further, [i]t is
not necessary that a receiver authorize an appeal by a corporation claiming to be aggrieved by
the order appointing him if the corporation is a party of record to the proceedings from which
the appeal is taken. Pratt v. Robert S. Odell & Co., 122 P.2d 684, 686 (Cal. Ct. App. 1942).
We therefore deny the motion to dismiss the appeal.
____________
115 Nev. 327, 327 (1999) Snyder v. York
STAN SNYDER, Appellant, v. HARRY L. YORK and SHARON K. YORK, Respondents.
No. 31580
November 29, 1999 988 P.2d 793
Appeal from an order of the district court granting summary judgment and denying
attorney's fees in excess of the amount limited by NRS 73.050 for appeals to district court of
small claims action. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
After prevailing on appeal in small claims action brought by home purchasers, vendor filed
separate independent action against purchasers requesting attorney's fees as provided in
prevailing party clause of parties' purchase agreement. The district court granted summary
judgment in favor of purchasers. Vendor appealed. The supreme court held that vendor could
not recover attorney's fees in excess of $15 statutory cap applicable to appeals in small claims
cases.
Affirmed.
Petersen & Petersen, Reno, for Appellant.
Avansino, Melarkey, Knobel, McMullen & Mulligan, Reno, for Respondents.
Costs.
Home vendor who prevailed on appeal in small claims action brought by purchasers could not recover
attorney's fees, under prevailing party clause of parties' residential purchase agreement, in excess of $15
statutory cap applicable to appeals in small claims cases. NRS 73.050.
OPINION
Per Curiam:
FACTS
Harry L. York and Sharon K. York (hereinafter Buyer) purchased a home from Stan
Snyder (hereinafter Seller) for $445,000. The purchase agreement contained a clause
awarding attorney's fees to the prevailing party in any dispute between the Seller and Buyer.
1

__________

1
The clause read as follows:
ATTORNEY FEES. In any action or proceeding involving a dispute between Buyer, Seller and/or
Broker, arising out of the execution of this
115 Nev. 327, 328 (1999) Snyder v. York
Buyer claimed Seller failed to disclose known defects in the house and filed a small claims
action against Seller seeking $2,500. The justice of the peace ruled in favor of Seller, and
Buyer appealed to district court. The case was remanded for clarification, and the justice of
the peace entered a formal written judgment. Seller requested attorney's fees in the sum of
$11,932.50 based on the attorney's fees clause of the agreement. The motion for attorney's
fees was higher than the jurisdictional limit of justice's court, and Seller requested the matter
be transferred to the district court so it could be considered with Buyer's second appeal.
Consequently, the justice's court transferred Seller's motion for attorney's fees pursuant to the
purchase agreement to the district court. The district court judge ruled in favor of Seller
against Buyer on the merits of the appeal and allowed Seller's attorney to file a supplemental
motion in the action for attorney's fees pursuant to the agreement. After briefing by the
parties, the court denied the request for attorney's fees. The district judge
2
stated:
The Parties can not [sic] create jurisdiction in this District Court to consider the Motion
for Attorney's Fees in the requested amount. This District Court considered this case as
an appellate court, and did not have original jurisdiction. NRS 73.050 explicitly
provides the powers of this Court regarding an award of attorney's fees in appeals to the
district court from the small claims court.
[Appellant] correctly stated that [t]here is little question that [appellant] could bring a
separate action in this Court based upon the attorney fee provision of the parties [sic]
agreement. However, until such time as this District Court has the proper jurisdiction
to grant the attorney's fees sought, the Court is restrained by the specific language
contained in NRS 73.050.
Therefore, [appellant's] Supplemental Motion for Attorney's Fees is hereby
GRANTED, however, pursuant to NRS 73.050, only in the amount of $15.00.
Seller then filed a separate independent action in district court requesting the attorney's
fees as provided in the prevailing party clause of the residential purchase agreement. Buyer
filed a motion to dismiss claiming the ruling in the first appeal was a res judicata bar to the
complaint. Seller filed a motion for summary judgment stating Buyer was collaterally
estopped from challenging the district judge's conclusion that Seller could maintain a
separate action to request an attorney's fees award pursuant to the contract.
__________
agreement or the sale or to collect commissions, the prevailing party shall be entitled to receive from the
other party a reasonable attorney fee to be determined by the court or arbitrator(s).

2
District Court Judge Connie J. Steinheimer heard the first appeal.
115 Nev. 327, 329 (1999) Snyder v. York
ment stating Buyer was collaterally estopped from challenging the district judge's conclusion
that Seller could maintain a separate action to request an attorney's fees award pursuant to the
contract. A different district court judge
3
ruled in favor of the Buyer, granting summary
judgment on the ground that Seller had received a reasonable attorney fee pursuant to NRS
73.050.
4
Seller filed this appeal from that decision.
DISCUSSION
The small claims section of the justices' courts was established to allow an inexpensive
method of recovery of money only where the amount claimed does not exceed the statutory
limit. See NRS 73.010. No attorney's fees are allowed either party in a small claims action
except in cases of shoplifting. See NRS 73.040.
5
Clearly, the policy is to allow persons to
recover money due and owing without the expense of hiring an attorney, becoming involved
in a lengthy discovery process, or being subjected to a prolonged trial. The justice's court
provides simple written forms for the public to use in small claims cases. The appeal form
specifically states that if the appeal is dismissed or the judgment is affirmed, [appellant] will
be subject to reimbursing the other party for court costs, and attorney's fees, not to exceed
$15, together with any reasonable expenses as determined by the district court. JCRCP 99.
Thus, a person who appeals a small claims action relies on the form, which limits the amount
of attorney's fees on appeal.
Originally, when the small claims court was formed, the legislature inserted a clause
stating that [n]o attorney at law or other person than the plaintiff and defendant shall take
any part in the filing or prosecution or defense of such litigation in the small claims court.
A.B. 79, 31st Leg. 874g (Nev. 1923). Subsequently, the Nevada Legislature removed this
section but inserted a clause which stated that [n]o attorney's fees are allowed either party to
an action mentioned or covered by this title. A.B. 140, 33rd Leg. 874g (Nev. 1927). The
cap on attorney's fees of $15 on appeal has remained unchanged.
In Desert Valley Water Co. v. State Engineer, 104 Nev. 718, 720, 766 P.2d 886, 886-87
(1988), we instructed:
__________

3
District Court Judge Janet J. Berry granted the motion for summary judgment in the separate independent
action.

4
NRS 73.050 provides as follows: The prevailing party on an appeal to the district court shall be awarded an
attorney fee by the district court not to exceed the sum of $15.

5
NRS 73.040 states: Except as provided by NRS 597.860 and 597.870, no attorney's fees are allowed either
party to an action mentioned or covered by this chapter.
115 Nev. 327, 330 (1999) Snyder v. York
When interpreting a statute, we resolve any doubt as to legislative intent in favor of
what is reasonable, as against what is unreasonable. Cragun v. Nevada Pub. Employees'
Ret. Bd., 92 Nev. 202, 547 P.2d 1356 (1976). The words of the statute should be
construed in light of the policy and spirit of the law, and the interpretation made should
avoid absurd results. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 503 P.2d
457 (1972).
It is clear that the legislature's intent is to keep the costs and attorney's fees low in small
claims cases.
CONCLUSION
It is reasonable to conclude that the legislature intended to make the small claims court a
people's court and to discourage attorneys from appearing. It would be absurd to award
$11,932.50 in attorney's fees on a $2,500 small claims case.
The district judge's order granting summary judgment pursuant to NRS 73.050 was correct
and we affirm the order.
____________
115 Nev. 330, 330 (1999) Daniels v. State
ALAN DEAN DANIELS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32453
November 29, 1999 988 P.2d 791
Appeal from an order of the district court revoking appellant's probation. Second Judicial
District Court, Washoe County; Deborah A. Agosti, Judge.
Defendant appealed order of the district court revoking probation on a category E felony
conviction following a second probation revocation hearing. The supreme court held that: (1)
as a matter of first impression, former statute's prohibition against ordering a jail term as a
condition of mandatory probation for category E felony applied only at initial sentencing
hearings; and (2) district court had authority at second probation revocation hearing to
condition probation on completion of intensive rehabilitative program, even if that condition
included a short term of confinement.
Reversed.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender,
Respondent.
1. Criminal Law.
Under former statute governing sentencing for category E felonies, prohibition against ordering a jail
term as a condition of mandatory probation applied only at initial sentencing hearings and did not limit
district court's discretionary authority in subsequent probation revocation hearings. NRS 193.130(2)(e).
2. Criminal Law.
Under former statute, district court had authority at second probation revocation hearing for defendant convicted of category E
felony to condition probation on completion of county's intensive rehabilitative program, regardless of whether such condition included
a short term of confinement. NRS 193.130(2)(e).
Before Rose, C. J., Young and Leavitt, JJ.
OPINION
Per Curiam:
SUMMARY
The issue of whether or not this court's decision in Miller v. State, 113 Nev. 722, 941 P.2d
456 (1997), applies to subsequent probation revocation hearings is one of first impression.
Our decision in Miller held that incarceration cannot be a condition of probation for a
category E felon. This issue arose after the district court revoked Alan Dean Daniels'
(Daniels) probation and reinstated his original sentence at his probation revocation hearing.
The district court, however, intimated that it was desirable to condition Daniels' probation on
his participation in an intensive rehabilitative program at the Washoe County Jail, but that it
was prevented from doing so in light of Miller. We hold that, as applied to these facts which
arose before NRS 193.130(2)(e) was amended in 1999, Miller does not prevent a district
court in a later probation revocation hearing from conditioning probation on participation in a
rehabilitative program that includes a term of confinement.
1

FACTS
On October 22, 1997, Daniels was placed on a period of mandatory probation pursuant
to pre-amendment NRS 193.130{2){e) after pleading guilty to the category E felony of
possession of a controlled substance.
__________

1
We limit our holding only to the facts before us because in 1999, the Nevada State Legislature abrogated
Miller by amending NRS 193.130(2)(e) to specifically allow a term of confinement of not more than one year to
be a condition of probation. See 1999 Nev. Stat., ch. 288, 1, at 1187.
mandatory probation pursuant to pre-amendment NRS 193.130(2)(e) after pleading guilty to
the category E felony of possession of a controlled substance. After an initial and unspecified
probation violation, the district court reinstated Daniels' probation on April 7, 1998, and
ordered him to attend the Salvation Army rehabilitation program. However, within an hour of
arriving at the Salvation Army program, Daniels left and contacted his probation officer to
inform him of his action. Shortly thereafter, Daniels was arrested for being under the
influence of alcohol and admitted into Washoe County's Highly Intensive Supervised
Training and Education Program (H.I.S.T.E.P.), a five-level, military-style program that
teaches inmates basic work and societal skills.
At Daniels' second probation revocation hearing held on April 29, 1998, Daniels' counsel
argued that, as an alternative to probation revocation and incarceration, the court should
consider ordering Daniels to continue in the H.I.S.T.E.P. program. The district court,
however, found that it could not order Daniels into the H.I.S.T.E.P. program pursuant to NRS
193.130(2)(e) because doing so would constitute imposing a jail term as a condition of
probation, in violation of this court's decision in Miller. Accordingly, the district court
revoked Daniels' probation and sentenced him to serve twelve to forty-eight months in prison.
DISCUSSION
[Headnote 1]
Daniels contends that the constraints on probation announced in Miller apply only at initial
sentencing hearings, and thus do not disturb the district court's discretionary authority in
subsequent probation revocation hearings. We agree with Daniels' position and reverse the
district court order.
Pre-amendment NRS 193.130(2)(e) required district courts to suspend the sentences of
persons convicted of category E felonies and place them instead on probation under
conditions that the district courts deemed appropriate. In relevant part, the statute provided:
[A] court shall sentence a convicted person to imprisonment in the state prison for a
minimum term of 1 year and a maximum of 4 years. . . . [U]pon sentencing a person
who is found guilty of a category E felony, the court shall suspend the execution of the
sentence and grant probation to the person upon such conditions as the court deems
appropriate.
NRS 193.130(2)(e) (1997) (emphasis added).
The district court's ability to determine the conditions of probation, however, was not
without limits.
bation, however, was not without limits. In Miller, we held that a district court's ordering of a
jail term as a condition of probation offended the legislative intent of NRS 193.130(2)(e) to
provide mandatory probation for category E felons. 113 Nev. at 726, 941 P.2d at 458-59.
[Headnote 2]
Miller, however, involved the district court's attachment of a jail term as a condition of
probation at the initial sentencing hearing. Here, the district court had already granted Daniels
his mandatory probation period and was presiding over a later probation revocation hearing.
Because we conclude that the policy set forth in Miller and the mandatory probation
provisions of NRS 193.130(2)(e) apply only to the initial sentencing procedure, we hold that
the district court had authority to condition Daniels' probation on the completion of the
H.I.S.T.E.P. program, regardless of whether such condition includes a short term of
confinement.
CONCLUSION
The pre-amendment NRS 193.130(2)(e) and our holding in Miller do not constrain a
district court in a probation revocation hearing from conditioning the probation on
participation in a rehabilitative program that includes a term of confinement. Accordingly, we
reverse the district court judgment in light of our holding.
____________
115 Nev. 333, 333 (1999) Standley v. Warden
KENNETH STANDLEY, Appellant, v. WARDEN, SOUTHERN NEVADA
CORRECTIONAL CENTER, G. TRUE, Respondent.
No. 29895
December 13, 1999 990 P.2d 783
Appeal from a district court order denying appellant's post-conviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Defendant who had pleaded guilty to one count of attempted sexual assault filed
post-conviction petition for writ of habeas corpus. The district court denied petition, and
defendant appealed. The supreme court held that trial judge improperly coerced defendant to
accept state's plea bargain offer.
Maupin and Agosti, JJ., dissented in part.
Steven J. Karen, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and John Lukens, Deputy District Attorney,
1. Criminal Law.
Trial judge improperly coerced defendant to accept state's offer to allow him to plead guilty to one count
of attempted sexual assault in return for dismissing other charges, even though defendant acknowledged at
plea canvass and in written plea memorandum that he was pleading guilty freely and voluntarily, where judge
addressed defendant at pre-trial hearing and emphasized advantages of plea bargain offered by state, said that
many of judge's clients during his twenty-two years as defense attorney had difficulty admitting they had
done something wrong, and also stated that many of them had wished they had made a deal once their cases
went to trial.
2. Criminal Law.
Plea of guilty must be the result of an informed and voluntary decision, not the product of coercion.
3. Criminal Law.
Judicial involvement in plea negotiation inevitably carries with it the high and unacceptable risk of coercing a defendant to accept
the proposed agreement and plead guilty.
4. Criminal Law.
Constitution does not forbid all participation by the judge in plea negotiation process. Only where the judge's conduct is
improperly coercive will courts consider affording a defendant an opportunity to withdraw his or her plea.
OPINION
Per Curiam:
FACTS
The state charged appellant Kenneth Standley, by criminal information, with three counts of sexual assault of a minor under fourteen
years of age and one count of open or gross lewdness. Pursuant to plea negotiations, the state offered to dismiss the charges if appellant
would plead guilty, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to one count of attempted sexual assault.
The district court held a pre-trial hearing on September 24, 1993. The district court judge commenced the hearing by remarking that
appellant probably [did not] want to accept the state's offer. Nevertheless, the judge indicated that he wanted to speak with appellant for a
few minutes.
The judge discussed other issues, then turned to address appellant.
lant. The judge emphasized the advantages of the plea bargain offered by the state, comparing
the sentencing consequences that appellant was facing if convicted with the consequences of
the state's offer. The judge also commented that in his twenty-two years of experience as a
defense attorney, he had many clients who had difficulty admitting that they had done
something wrong. The judge stated:
I don't know how many clients I had who got a little high, either on pot or had been
doing a little drinking, or without any substance at all, but usually something like that.
And did some inappropriate touching of their child or their stepchild. And that's a hard
thing to admit.
And I had many clients who, when they first started, would not admit it. And over a
period of time, realized that the legal system worked better if they admitted that they
had made a mistake.
But what the State is offering you, if you want to, is that you don't even have to say
that you did anything wrong. You can plead guilty to attempted sexual assault under
Alford and still stand there and say, I didn't do anything wrong, but I don't want to go
to trial.
The judge further discussed the plea offer with appellant and then concluded:
But, I just want you to know what you're facing. What your decision is, I don't even
want to influence; it's not my job. I just know, after all the years I've been doing
criminal defense work and now being a judge, that very often you hear one thing from
your lawyer, you never heard anything from the judge, you sure aren't going to listen to
the prosecutor and you end up sitting in prison and then going, Boy, you know, that
was a bad choice.
I don't know how many clients I had who the trial would start and the jurors would be
over there and they'd turn to me and they'd sayand they hadn't really been listening up
to then, though, most of my clients did when I talked to themand they'd say, Is this
what a trial is like? I'm going to get convicted, aren't I? And I'd say, Yeah, that's I've
[sic] been telling you for three months. And they'd say, Is there still time to take a
deal?
And I'd ask the prosecutorI'd slip him a note, or she [sic] a note, and they'd say, To
hell with you, no. It's too late. We're in trial and my client would get convicted.
So, I just wanted you to hear from me, the facts, as I see them, which has nothing to
do with the merits of the case, which deals with your alternatives.
I'm going to take, like, a two-minute recess after [the prosecutor] speaks and you can
talk to [your attorney] and then we'll set a trial date if it's not your desire to plead.
During the recess, appellant decided to accept the plea offer. The judge canvassed appellant
and accepted the plea. The parties also signed a written plea memorandum and filed it with
the court.
On December 6, 1993, the district court entered the judgment of conviction of one count
of attempted sexual assault. The court sentenced appellant to serve nine years in the Nevada
State Prison. This court dismissed appellant's subsequent direct appeal pursuant to a request
for voluntary dismissal. Standley v. State, Docket No. 26007 (Order Dismissing Appeal, July
28, 1995).
On December 4, 1995, appellant filed a proper person post-conviction petition for a writ of
habeas corpus in the district court. The court did not appoint counsel or hold an evidentiary
hearing, and denied appellant's petition as successive. See NRS 34.750; NRS 34.770; NRS
34.810. On appeal, this court determined that appellant's petition was not successive and
remanded the matter to the district court for reconsideration. Standley v. State, Docket No.
28218 (Order of Remand, May 7, 1996).
Appellant subsequently secured counsel, and counsel filed supplemental documents on
appellant's behalf. The state opposed the petition. The district court declined to hold an
evidentiary hearing and denied appellant's petition on the merits. See NRS 34.770. This
appeal followed.
DISCUSSION
[Headnote 1]
Appellant asserts that the district court judge improperly coerced him to accept the state's
plea offer. We agree. Consequently, we hold that the district court abused its discretion in
declining to afford appellant an opportunity to withdraw his plea. See Bryant v. State, 102
Nev. 268, 272, 721 P.2d 364, 368 (1986) (stating that this court will not reverse a district
court's determination concerning the validity of a plea absent an abuse of discretion).
[Headnotes 2, 3]
A plea of guilty must be the result of an informed and voluntary decision, not the product
of coercion. See Smith v. State, 110 Nev. 1009, 1010, 879 P.2d 60, 61 (1994). Further,
[j]udicial involvement in plea negotiation inevitably carries with it the high and unacceptable
risk of coercing a defendant to accept the proposed agreement and plead guilty.' Id. at 1014,
879 P.2d at 63 (quoting United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992)).
Here, the judge did more than facilitate the plea negotiations or make an isolated comment
about the plea offer. Rather, the judge effectively convinced appellant to accept the plea offer
through lengthy exposition. In commenting on the offer, the judge evinced an unmistakable
desire that appellant accept the offer. Appellant had good reason to fear offending the judge if
he declined because the same judge would have presided over the trial and, if the trial
resulted in a conviction, the judge would have determined the appropriate sentence.
1
See
Bruce, 976 F.2d at 556-58.
2
When a judge suggests to a defendant . . . that he should plead
guilty, the coercive effect of this suggestion is likely to be overwhelming. Welsh S. White, A
Proposal for Reform of the Plea Bargaining Process, 119 U.Pa.L.Rev. 439, 452 (1971)
(quoted in parenthetical in Bruce, 976 F.2d at 556 n.3).
Moreover, we are troubled by the judge's repeated references to his prior experience as a
defense attorney who represented clients in circumstances similar to those that appellant was
facing. The judge thereby adopted the role of counselor to a criminal defendant, foregoing his
duty as a neutral arbiter of the criminal prosecution. See Bruce, 976 F.2d at 557.
Under these circumstances, we conclude that it is unnecessary to order the district court to
hold an evidentiary hearing and that appellant should be afforded an opportunity to withdraw
his plea. Although appellant acknowledged at the plea canvass and in the written plea
memorandum that he was pleading guilty freely and voluntarily, the record affirmatively
reflects that the judge induced appellant to accept the state's plea offer.
[Headnote 4]
We caution, however, against an expansive interpretation of this opinion. The constitution
does not forbid all participation by the judge in the plea negotiation process. Miles v. Dorsey,
61 F.3d 1459, 1466-67 (10th Cir. 1995); Damiano v. Gaughan, 770 F.2d 1, 2 {1st Cir. 19S5).
__________

1
At one point the judge stated,
You're now faced with a gross misdemeanor, which is relatively insignificant. That's Count IV. And
Counts III, I through III each carry a life sentence. Now, I suppose those could run consecutive. But it's
unlikely that you're going to get life, plus life, plus life, plus life. But, you know, that's a possibility.
Although we have no doubt that the judge did not intend these remarks as a threat, appellant could have
construed the remarks as a warning that multiple, consecutive, life sentences would result if appellant failed to
accept the state's plea offer and was found guilty at trial.

2
Bruce is not directly on point as it concerns failure to comply with a Federal Rule of Criminal Procedure
prohibiting a judge from engaging in plea discussions. Nevertheless, the discussion in Bruce concerning the
dangers of judicial involvement in plea discussions is particularly applicable to the instant case.
1, 2 (1st Cir. 1985). Only where the judge's conduct is improperly coercive will we consider
affording a defendant an opportunity to withdraw his or her plea. See id.
CONCLUSION
We reverse the district court order denying appellant's petition and remand this matter to
the district court with instructions to afford appellant an opportunity to withdraw his plea.
3

Maupin, J., with whom Agosti, J., agrees, concurring in part and dissenting in part:
I agree that the district court became too involved in the plea negotiation process. I do not
agree that this involvement amounted to coercion. Thus, I would affirm the order denying
post-conviction relief.
Ordinarily, the permutations and risks discussed in the colloquy between the district court
and this appellant should only have been explored between appellant and his attorney. Given
the options with which appellant was confronted, and given the expertise and experience of
appellant's trial counsel, it is safe to assume that a full discussion of the matter occurred prior
to the in-court proceedings that led to acceptance of the plea arrangement. It is evident,
however, that the district court felt the need to elaborate on the risks of a trial on the original
charges. That elaboration, however ill-advised, and regardless of whether his comments
should have been left unsaid in deference to the interaction between appellant and his
counsel, amounts only to a candid assessment of the substantial benefits of the negotiated
settlement.
__________

3
The district court held that several other claims raised by appellant were barred to the extent that they did not
challenge the knowing and voluntary nature of the plea or relate to the efficacy of counsel. See NRS
34.810(1)(a). Having reviewed appellant's petition, we conclude that the district court did not err in making this
determination. See Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994) (stating that claims of ineffective
assistance of counsel or challenges to the validity of a guilty plea must be first pursued in post-conviction
proceedings, but other claims appropriate to direct appeal must be pursued on direct appeal or they are deemed
waived), overruled on other grounds by Thomas v. State, 115 Nev. 148, 14951, 979 P.2d 222, 223-24 (1999);
Webb v. State, 91 Nev. 469, 538 P.2d 164 (1975) (stating that a guilty plea generally precludes consideration of
events occurring prior to entry of the plea). Further, in light of our disposition, we need not consider appellant's
claim that the district court erred in accepting appellant's Alford plea in the absence of strong or overwhelming
evidence of his guilt.
____________
115 Nev. 339, 339 (1999) Grotts v. Zahner
KELLIE GROTTS, Appellant, v. GERTRUDE ZAHNER, Respondent.
No. 29614
December 13, 1999 989 P.2d 415
Appeal from an order of the district court dismissing appellant's complaint for failure to
state a claim upon which relief can be granted. Eighth Judicial District Court, Clark County;
Myron E. Leavitt, Judge.
Fiance who witnessed accident in which victim was fatally injured sued other person
involved for negligent infliction of emotional distress. The district court dismissed action.
Appeal was taken. The supreme court, Maupin, J., held that: (1) standing of accident
bystander to bring emotional distress claim requires membership in victim's family either by
blood or marriage, abrogating State, Department of Transportation v. Hill, 114 Nev. 810, 963
P.2d 480 (1998); (2) immediate family members have standing as matter of law to bring
emotional distress claims, and when family relationship is beyond immediate family,
existence of sufficiently close relationship is fact issue; and (3) fiance lacked standing to
bring claim.
Affirmed.
Rose, C. J., and Shearing, J., dissented.
Law Office of Travis E. Shetler, Las Vegas, for Appellant.
Lemons Grundy & Eisenberg and Michael R. Montero, Reno; William C. Turner &
Associates and Richard C. Sipan, Las Vegas, for Respondent.
1. Damages.
A bystander who witnesses an accident may recover for emotional distress if he or she: (1) was located
near the scene, (2) was emotionally injured by the contemporaneous sensory observance of the accident, and
(3) was closely related to the victim.
2. Damages.
For purposes of bystander emotional distress claims, issues of standing based on the closeness of relationship between victim and
bystander should, as a general proposition, be determined based upon family membership, either by blood or marriage; abrogating
State, Dep't of Transp. v. Hill, 114 Nev. 810, 963 P.2d 480 (1998).
3. Damages.
Immediate family members of victim who witness accident have standing, as matter of law, to bring negligent infliction of
emotional distress claims.
4. Damages.
When the family relationship between the victim and the bystander is beyond the immediate family, fact finder should assess the
nature and quality of the relationship and determine as a factual matter whether the relationship is close
enough to confer standing on bystander to seek emotional distress damages from witnessing accident.
quality of the relationship and determine as a factual matter whether the relationship is close enough to
confer standing on bystander to seek emotional distress damages from witnessing accident.
5. Damages.
Any non-family relationship with victim fails, as a matter of law, to qualify for standing on part of bystander to seek emotional
distress damages from witnessing accident.
6. Damages.
When accident bystander seeks recovery for emotional distress, actual closeness of the family relationship with victim is always an
issue of fact with respect to damages, whether or not the victim and bystander are immediate family members.
7. Damages.
Standing of in-laws of accident victims to bring claims for negligent infliction of emotional distress must be left to the fact
finder rather than determined as a matter of law.
8. Damages.
Fiance who witnessed accident in which victim was fatally injured, not being a member of victim's family by blood or
marriage, lacked standing to bring a bystander claim for negligent infliction of emotional distress.
OPINION
By the Court, Maupin, J.:
Appellant, Kellie Grotts (Grotts), and her fianc were involved in an accident with respondent Gertrude Zahner (Zahner). Grotts
commenced her action below against Zahner seeking bystander emotional distress damages in connection with fatal injuries sustained by
her fianc in the accident. The district court dismissed her claim of bystander emotional distress on the ground that she was not, as a matter
of law, closely related to her fianc for these purposes. Grotts appeals.
[Headnote 1]
A bystander who witnesses an accident may recover for emotional distress in certain limited situations. See State v. Eaton, 101 Nev.
705, 716, 710 P.2d 1370, 1377-78 (1985) (citing Dillon v. Legg, 441 P.2d 912, 916 (Cal. 1968)). To recover, the witness-plaintiff must
prove that he or she (1) was located near the scene; (2) was emotionally injured by the contemporaneous sensory observance of the
accident; and (3) was closely related to the victim. Eaton, 101 Nev. at 716, 710 P.2d at 1377-78.
In State, Department of Transportation v. Hill, 114 Nev. 810, 816, 963 P.2d 480, 483 (1998), a plurality of this court determined that
whether a plaintiff can recover [damages] for NIED [negligent infliction of emotional distress] after witnessing injury to
another based on the plaintiff's relationship to the victim is generally a question of fact."
[negligent infliction of emotional distress] after witnessing injury to another based on the
plaintiff's relationship to the victim is generally a question of fact. Acknowledging that
obvious cases will exist where the issue of closeness can be determined as a matter of law,
the plurality concluded that the fact finder in most cases should be left with the task of
assessing the nature and quality of the claimant's relationship to the victim for these purposes.
[Headnotes 27]
We now conclude, contrary to the plurality holding in Hill, that standing issues concerning
closeness of relationship between a victim and a bystander should, as a general proposition,
be determined based upon family membership, either by blood or marriage. Immediate family
members of the victim qualify for standing to bring NIED claims as a matter of law. See Hill,
114 Nev. at 820, 963 P.2d at 485 (Maupin, J., concurring). When the family relationship
between the victim and the bystander is beyond the immediate family,
1
the fact finder should
assess the nature and quality of the relationship and, therefrom, determine as a factual matter
whether the relationship is close enough to confer standing. This latter category represents the
few close cases where standing will be determined as an issue of fact, either by a jury or the
trial court sitting without a jury.
2
See id. at 820, 963 P.2d at 485.
3
We therefore hold that
any non-family relationship fails, as a matter of law, to qualify for NIED standing.
4

[Headnote 8]
In this case, Grotts claims standing to lodge a bystander NIED claim because of her
affianced relationship to the victim. Because she was not a member of his family by blood
or marriage, we hold that she does not enjoy the type of close relationship required under
Eaton.
5

__________

1
Family relationships beyond the first degree of consanguinity.

2
The actual closeness of the family relationship, whether or not the victim and the bystander are immediate
family members, is always an issue of fact with respect to damages. State, Dep't of Transp. v. Hill, 114 Nev.
810, 820, 963 P.2d 480, 485 (1998).

3
Because the test we have adopted is calculated to foster predictability and fairness in these matters, we
conclude that the question of standing of inlaws to bring NIED claims must be left to the fact finder rather than
determined as a matter of law. In this, I now retreat somewhat from my concurring position in Hill.

4
Our decision today does not in any way undermine our time-honored system of stare decisis. Hill was a
plurality opinion that serves as an important signpost in the ongoing debate over the scope of emotional distress
remedies. This case resolves, in large part, that debate.

5
The separate concurrence in Hill reflects my reluctance at that time to adopt a rigid rule of standing in these
matters. However, the nature of this
For the above reasons, we affirm the trial court.
6

Young, Agosti and Becker, JJ., concur.
Rose, C. J., dissenting:
Just a year ago, in State, Department of Transportation v. Hill, 114 Nev. 810, 963 P.2d 480
(1998), we drafted a less rigid and more equitable framework for deciding negligent infliction
of emotional distress issues. The majority's departure from the framework set forth in Hill
prevents that procedure from being tested in our district courts to determine its validity. I
believe we are discarding this precedent prematurely.
Legal precedents of this Court should be respected until they are shown to be unsound in
principle. As stated by the United States Supreme Court:
The doctrine of stare decisis imposes a severe burden on the litigant who asks us to
disavow one of our precedents. For the doctrine not only plays an important role in
orderly adjudication; it also serves the broader societal interests in evenhanded,
consistent, and predictable application of legal rules.
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980).
And as stated by the Supreme Court of Illinois:
[W]hen a rule of law has once been settled, contravening no statute or constitutional
principle, such rule ought to be followed unless it can be shown that serious detriment
is thereby likely to arise prejudicial to public interests. [Citations omitted.] The rule of
stare decisis is founded upon sound principles in the administration of justice, and rules
long recognized as the law should not be departed from merely because the court is of
the opinion that it might decide otherwise were the question a new one.
Maki v. Frelk, 239 N.E.2d 445, 447 (Ill. 1968).
__________
particular claim makes it apparent that these standing issues should be determined based upon intra-family
relationships.

6
In dissent, Chief Justice Rose voices his concern that many close traditional and non-traditional
relationships are left out of the Dillon v. Legg equation. He correctly observes that many such relationships are
far more close and valued than relationships between family members. However, the majority of this court is
of the opinion that this admittedly limited remedy must be subject to objective but fair standards. Without an
objective test for standing to seek this type of legal redress, almost any type of close friendship, traditional or
otherwise, might form the basis of a triable claim. Thus, this case has nothing to do with and makes no social
comment upon persons living non-traditional lifestyles.
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this
appeal.
The rule adopted by the majority requires a relationship by blood or marriage before one
can claim to have a close relationship for purposes of pursuing damages for negligent
infliction of emotional distress. While this rule will be predictable, it will permit some people
to pursue this claim who have no close relationship, and yet prohibit others who have a
loving, close relationship with someone injured or killed from pursuing these claims merely
because they are not related by blood or marriage.
The case at issue provides a good example. Kellie Grotts and John Colwell were very
much in love and expected to marry in the near future. They were at the zenith of love and
commitment. Numerous plays and novels have been written about the great loss suffered
when this type of relationship ends with the death of one party. Yet the majority denies Kellie
Grotts' claim for emotional distress caused as a result of witnessing the death of the love of
her life and constant companion simply because their wedding date was a few months off.
This same scenario could happen to an older man and woman who, for a variety of reasons,
had lived together for years but were not formally married.
And the unfairness of the rule adopted today does not stop there. Anyone living in a
non-traditional relationship will be denied the chance to recover emotional distress damages,
while those living together with benefit of marriage will not suffer such prejudice. It is a fact
of life that many gay men and lesbian women have partners with whom they have lived for
decades and shared a close, loving relationship. These individuals will be denied the right to
even claim damages for emotional distress for witnessing injury or death to their partner for
no other reason than that they are not legally married, a status they cannot prevent. The
closeness of two people should be judged by the quality and intimacy of the relationship, not
by whether there is a blood relationship or whether a document has been filed at the court
house. A segment of our population should not be denied legal redress simply because of
their lifestyle.
The rule we adopted in Hill permits a judge to first scrutinize the claim of emotional
distress to determine if the relationship is sufficiently close to create an issue of fact to
present to a jury. State, Dep't of Transp. v. Hill, 114 Nev. at 816, 963 P.2d at 484 (1998). If it
is, the jury will then hear all the facts of the case, including the nature of the relationship
existing between the plaintiff and the party injured or killed. We ask juries to make all sorts
of difficult determinations and deciding the closeness of a relationship is a judgment juries
are uniquely qualified to make. Leaving this factual determination to the jury would give
Nevada a reasonably flexible rule that does not arbitrarily bar those who would otherwise be
able to establish a close relationship.
would otherwise be able to establish a close relationship. The majority of this court once saw
the wisdom of this rule.
Accordingly, I dissent.
Shearing, J., dissenting:
I would reverse the judgment of the district court and remand the case for trial. In cases
involving claims of negligent infliction of emotional distress, the question of whether the
plaintiff is closely related to the victim is generally a fact question to be determined by the
jury. State, Dep't of Transp. v. Hill, 114 Nev. 810, 816, 963 P.2d 480, 483 (1998). The fact
finder should have the opportunity to assess the nature and quality of the relationship between
the plaintiff and the victim whose injury or death was witnessed by the plaintiff. Id. To
exclude a fianc as a closely related person seems especially to put the form over the
substance of the relationship.
____________
115 Nev. 344, 344 (1999) Wood v. State
ALLEN DWIGHT WOOD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30608
December 13, 1999 990 P.2d 786
Appeal from a judgment of conviction pursuant to a jury verdict of attempted murder,
conspiracy to commit murder, and solicitation to commit murder. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Defendant was convicted, after a jury trial in the district court of attempted murder,
conspiracy to commit murder, and solicitation to commit murder. Defendant appealed. The
supreme court held that: (1) Confrontation Clause violation in admitting co-conspirator's
statement that defendant had asked co-conspirator to kill defendant's ex-wife was not
harmless, (2) defendant could not be convicted of attempted murder or conspiracy to commit
murder and also be convicted of solicitation to commit murder for the same acts, and (3) fast
track procedure for appeal did not violate federal due process or state constitution's guarantee
of right of appeal in felony cases.
Maupin, J., dissented in part.
Michael K. Powell, Carson City, for Appellant.
115 Nev. 344, 345 (1999) Wood v. State
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District
Attorney, and Anne M. Langer, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
If the hearsay statements do not fall within a firmly rooted hearsay exception, they must be supported by
a showing of particularized guarantees of trustworthiness in order to be admissible under the Confrontation
Clause. U.S. Const. amend. 6.
2. Criminal Law.
Witness's testimony that co-conspirator told her that defendant had asked the co-conspirator to kill defendant's ex-wife was not
admissible as a non-hearsay statement of a co-conspirator, where the witness was not a member of the conspiracy when the
co-conspirator made the statement and the statement was not designed to induce the witness to join the conspiracy. NRS
51.035(3)(e).
3. Criminal Law.
Co-conspirator's statement that defendant had asked the co-conspirator to kill defendant's ex-wife was not admissible under
hearsay exception for statement against interest because the co-conspirator's statement implicated both the defendant and the
co-conspirator. NRS 51.345(2).
4. Criminal Law.
Statement by co-conspirator that defendant had asked the co-conspirator to kill defendant's ex-wife was not supported by
particularized guarantees of trustworthiness, as required for admission under Confrontation Clause, where co-conspirator's testimony at
preliminary hearing that defendant had assaulted ex-wife was contradictory and was not against co-conspirator's self-interest. U.S.
Const. amend. 6.
5. Criminal Law.
Adequate indicia of reliability, as required for admission of hearsay under Confrontation Clause, must be
found in reference to circumstances surrounding the making of the out-of-court statement, and not from
subsequent corroboration of the criminal act. U.S. Const. amend. 6.
6. Criminal Law.
Both hearsay and Confrontation Clause errors are subject to harmless error analysis. U.S. Const. amend. 6.
7. Criminal Law.
Confrontation Clause violation in admitting one co-conspirator's statement that defendant had asked that co-conspirator kill
defendant's ex-wife was not harmless, where defendant's conviction for attempted murder and conspiracy to commit murder otherwise
rested almost exclusively on testimony of another co-conspirator who admittedly had previously perjured himself. U.S. Const. amend.
6.
8. Criminal Law.
A defendant convicted of attempted murder or conspiracy to commit murder cannot also be convicted of solicitation to commit
murder for the same acts. NRS 199.480(1), 199.500(2).
9. Criminal Law.
The standard for determining whether limitation on right of appeal violates state constitution's guarantee of right of appeal in
felony cases and state statute's prohibition of court rules abridging or modifying a substantive right is whether criminal defendants
have an adequate opportunity to present their claims within the adversary system.
115 Nev. 344, 346 (1999) Wood v. State
tunity to present their claims within the adversary system. Const. art. 6, 4; NRS 2.120(2).
Fast track procedure for criminal appeal in felony case did not violate federal due process, state constitution's guarantee of right of
appeal in felony cases, and state statute's prohibition of court rules abridging or modifying a substantive right. Right of appeal was
automatic, rough draft transcript was provided, and defendant's substantive arguments were considered by the court. Const. art. 6, 4;
U.S. Const. amend. 14; NRS 2.120(2); NRAP 3C.
OPINION
Per Curiam:
Appellant Allen Dwight Wood was sentenced to a minimum term of thirteen years in the
Nevada State Prison after a jury conviction of one count each of attempted murder,
solicitation to commit murder, and conspiracy to commit murder. Wood alleges numerous
errors forming the basis of his appeal, including that the admission of out-of-court statements
implicating him in the conspiracy was reversible error, that he was improperly convicted of
solicitation to commit murder, and that Nevada's Fast Track criminal appeal procedure is
unconstitutional. We conclude that appellant's rights under the Sixth Amendment were
violated. We therefore reverse Wood's convictions for solicitation to commit murder,
attempted murder, and conspiracy. Further, we hold that Nevada's Fast Track criminal appeal
procedure is constitutional. We conclude that Wood's other contentions on appeal lack merit.
FACTS
Wood and his ex-wife Lisa Wood resided in Carson City together during the fall of 1996.
Wood and Lisa had a physical altercation on November 16, which resulted in Wood leaving
the house. In the early morning hours of November 17, Lisa was asleep on a couch with her
daughter and Louis Eads, a minor, when she awoke suddenly, in pain and bleeding profusely
from her chin and neck. Two males, who were minors at the time, Justin Anderson and Brian
Bardin, were standing near her. Anderson and Bardin knew Lisa through their association
with Wood, who was allegedly the head of a mafia organization into which he had initiated
the boys.
Initially, Lisa thought she had slashed her face on an upholstery nail. However, after
talking to the boys she became suspicious that they had harmed her, and she forced them both
out of her house.
115 Nev. 344, 347 (1999) Wood v. State
As they were departing, Bardin told Lisa, If you tell anybody, we won't miss the second
time.
Anderson and Bardin were arrested for the assault on Lisa and were each charged as adults
with attempted murder, battery with use of a deadly weapon and battery causing substantial
bodily harm. Anderson and Bardin apparently fabricated a story that Wood, assisted by Eads
and another minor, Chris Jones, entered the home and slashed Lisa. In exchange for their
testimony against Wood, the State allowed Anderson and Bardin to plead guilty in juvenile
court to a charge of conspiracy to commit battery. The State gave Anderson and Bardin
immunity for the adult charges, which were dismissed. Several days before the plea
agreement with Anderson and Bardin was negotiated, the State charged Wood with attempted
murder, battery with use of a deadly weapon, and battery causing substantial bodily harm.
At Wood's preliminary hearing, Anderson and Bardin both testified that on November 16,
Wood instructed them to leave Lisa's home unlocked around 4:30 a.m. on November 17, so
that he could enter the home and murder Lisa. Eads testified that he saw Wood injure Lisa
with a knife. Jones testified that Wood told him that he had injured Lisa. After the
preliminary hearing, Wood was bound over for trial on attempted murder, battery with use of
a deadly weapon, and battery causing substantial bodily harm.
After the hearing, the State received information that Anderson and Bardin had admitted
that they assaulted Lisa. Thereafter, a second preliminary hearing was held for Wood, and
Anderson testified that he had perjured himself at the initial preliminary hearing. Anderson
then admitted that he and Bardin went to the home at Wood's insistence, and that Wood
instructed Anderson to murder Lisa while Bardin murdered Eads. The State continued
Anderson's immunity from the adult charges, and granted him immunity for his perjured
testimony at the first preliminary hearing.
1

At the second preliminary hearing, Eads denied seeing Wood slash Lisa and instead
claimed to have witnessed Bardin commit the attack. Eads was also granted immunity for his
perjury at the first preliminary hearing. On the basis of Eads's and Anderson's testimony at the
second preliminary hearing, Wood was bound over on the original three counts which had
been amended to allege vicarious liability as a non-participating aider and abetter. He was
also bound over on a charge of conspiracy to commit murder and solicitation to commit
murder.
__________

1
Bardin refused to recant the statements he made during the first preliminary hearing, and the State withdrew
his immunity. The State prosecuted Bardin as an adult, and he pled guilty to battery with use of a deadly
weapon, receiving a sentence of 24-60 months incarceration.
115 Nev. 344, 348 (1999) Wood v. State
Wood's case proceeded to trial, with the State's theory being that Wood solicited Anderson
and Bardin, and then conspired with them, to kill Lisa. Anderson testified at the trial that after
the November 16 fight between Lisa and Wood, Wood met with Bardin and Anderson twice
in Bardin's garage to discuss killing Lisa and Eads. To corroborate Anderson's testimony, the
State called Amanda Greene, who testified that Bardin told her prior to November 16, that he
and Anderson were going to kill Lisa at Wood's request. Anderson also testified that while he
assaulted Lisa, he never intended to harm her.
After a five-day jury trial the jury convicted Wood of attempted murder, conspiracy to
commit murder, and solicitation to commit murder. Wood received consecutive sentences
that resulted in a minimum term of thirteen years in prison. Wood filed this timely appeal,
which was initially placed on the Fast Track system pursuant to NRAP 3C. After Fast Track
statements were filed, the case was moved to the fully-briefed track.
DISCUSSION
Hearsay Statements of Co-Conspirator
[Headnote 1]
Wood contends that the trial court's admission of statements Bardin made to Amanda
Greene violated the Confrontation Clause of the Sixth Amendment. We agree. This court has
held that:
The Confrontation Clause limits the state's ability to use hearsay as evidence in criminal
trials when the hearsay declarant does not testify. The Clause requires that hearsay
offered against an accused be sufficiently reliable to substitute for in-court scrutiny
through cross-examination. Hearsay statements are sufficiently reliable when they fall
within a firmly rooted hearsay exception.
Franco v. State, 109 Nev. 1229, 1239, 866 P.2d 247, 253 (1993) (footnote omitted). If the
hearsay statements do not fall within such an exception, they must be supported by a showing
of particularized guarantees of trustworthiness. Id. at 1239, 866 P.2d at 254. Greene's
testimony does not qualify as non-hearsay, does not fall within any exception to the hearsay
rule, and was not supported by particularized guarantees of trustworthiness.
[Headnote 2]
Greene testified that Bardin told her that Wood had asked him to kill Lisa, and that Bardin
said that he had decided that he and Anderson were going to comply with Wood's request.
The district court admitted the statement as non-hearsay under NRS 51.035{3){e), which
provides:
115 Nev. 344, 349 (1999) Wood v. State
court admitted the statement as non-hearsay under NRS 51.035(3)(e), which provides:
3. The statement is offered against a party and is:
. . .
(e) A statement by a coconspirator of a party during the course and in furtherance of the
conspiracy.
This court has held that before an out-of-court statement by an alleged co-conspirator may be
admitted into evidence against a defendant, the existence of a conspiracy must be established
by independent evidence, and the statement must have been made during the course of and in
furtherance of the conspiracy. Carr v. State, 96 Nev. 238, 239, 607 P.2d 114, 116 (1980).
Independent evidence of a conspiracy to kill Lisa was admitted. Anderson testified that
Wood asked him to kill Lisa and provided him with a knife, which was not used in the attack,
to perpetrate the crime. Corroborating Anderson's testimony and Bardin's admission, Rich
Hussey testified that after the attack, he heard Bardin tell Wood that Bardin [did] not cut her
face right, and Wood did not respond in a manner suggesting that he was unaware of what
Bardin was talking about. Further, Jones testified that on the night Lisa was slashed, Wood
said that he wanted to kill that fucking bitch, and that while Jones was unsure if Wood was
serious about actually killing her, Wood sounded sincere. No motive was apparent for the
boys to slash Lisa independent of Wood's request that they do so.
However, Bardin's statement to Greene was not made in furtherance of the conspiracy, as
is required under NRS 51.035(3)(e). In U.S. v. Shores, 33 F.3d 438, 444 (4th Cir. 1994), the
United States Court of Appeals for the Fourth Circuit held that statements made by a
co-conspirator to a third party who is not then a member of the conspiracy are in furtherance
of the conspiracy only if they are designed to induce that party to join the conspiracy or act in
a way that would assist the conspiracy's objectives. Neither of these factors is present in
Bardin's statements to Greene. Therefore, we conclude that the statement could not be
admitted under NRS 51.035(3)(e) as non-hearsay.
[Headnote 3]
Furthermore, the statement does not fall within any firmly rooted exception to the hearsay
rule. The statement does not qualify as a statement against interest under NRS 51.345. NRS
51.345(2) provides [t]his section does not make admissible a statement or confession offered
against the accused made by a codefendant or other person implicating both himself and the
accused. The statement was offered against Wood and was made by Bardin, and implicated
both Wood and Bardin, disqualifying it for the hearsay exception under the statute.
115 Nev. 344, 350 (1999) Wood v. State
by Bardin, and implicated both Wood and Bardin, disqualifying it for the hearsay exception
under the statute.
[Headnotes 4, 5]
Thus, we must determine if Greene's testimony is supported by a showing of particularized
guarantees of trustworthiness. Bardin implicated himself in the conspiracy via his statement
to Greene, which suggests that the statement is trustworthy because it was against Bardin's
interests. However, Bardin then testified at the first preliminary hearing that Wood assaulted
Lisa, contradicting his statement to Greene that he was planning to kill Lisa pursuant to
Wood's order. Bardin refused to recant this testimony. There was nothing in the
circumstances surrounding Bardin's statement to Greene that provides a particularized
guarantee of trustworthiness as required for admission under the Confrontation Clause.
Franco, 109 Nev. at 1239, 866 P.2d at 253. Adequate indicia of reliability must be found in
reference to circumstances surrounding the making of the out-of-court statement, and not
from subsequent corroboration of the criminal act. Idaho v. Wright, 497 U.S. 805, 821
(1990). There are no such indicia of reliability here and therefore, the admission of Greene's
testimony was erroneous.
[Headnotes 6, 7]
Both hearsay and Confrontation Clause errors are subject to harmless error analysis.
Franco, 109 Nev. at 1237, 866 P.2d at 252. Wood's conviction rested almost exclusively on
the testimony of Anderson, a co-conspirator who admittedly previously perjured himself.
Bardin's statement, also implicating Wood, could very well have been the deciding factor for
the finding of guilt by the jury. Therefore, we cannot conclude that the erroneous admission
of Bardin's statement via Greene's testimony was harmless beyond a reasonable doubt.
Solicitation to Commit Murder
[Headnote 8]
Wood maintains that he was improperly convicted of solicitation to commit murder under
NRS 199.500(2). We agree that if Wood is convicted of conspiracy to commit murder or
attempted murder, he cannot be convicted of solicitation to commit murder for the same acts.
The statute provides:
A person who counsels, hires, commands or otherwise solicits another to commit
murder, if no criminal act is committed as a result of the solicitation, is guilty of a
category B felony and shall be punished by imprisonment in the state prison for a
minimum term of not less than 2 years and a maximum term of not more than 15
years, and may be further punished by a fine of not more than $10,000.
115 Nev. 344, 351 (1999) Wood v. State
maximum term of not more than 15 years, and may be further punished by a fine of not
more than $10,000.
(Emphasis added.)
When a person solicits another to commit murder and the second person agrees, a
conspiracy is formed. NRS 199.480(1) governs conspiracy and provides in pertinent part:
[W]henever two or more persons conspire to commit murder . . . each person is guilty
of a category B felony. . . .
A conspiracy is a criminal act, which triggers the exclusionary clause in the solicitation
statute. In State v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 837 (1997), we held that,
[w]hen a defendant receives multiple convictions based on a single act, this court will
reverse redundant convictions that do not comport with legislative intent.' (Citation
omitted.) Based on the exclusionary language contained in NRS 199.500(2), on remand,
Wood could be convicted of solicitation to commit murder in these circumstances only if he
is not convicted of conspiracy or attempted murder for the attack on Lisa.
Fast Track Procedure
[Headnote 9]
Wood also maintains that Rule 3C of the Nevada Rules of Appellate Procedure (NRAP),
governing Fast Track criminal appeals, violates both NRS 2.120(2), which prohibits this court
from making rules that abridge or modify a substantive right, and Article 6, Section 4 of the
Nevada Constitution, which guarantees a right of appeal in felony cases. Wood argues that all
defendants who have elected to stand trial are granted an unrestricted right to a fully-briefed
appeal without having to make a preliminary showing of merit. We disagree. The United
States Supreme Court has determined that the pertinent Fourteenth Amendment issue
regarding criminal appeals is whether criminal defendants have an adequate opportunity to
present their claims within the adversary system. Ross v. Moffitt, 417 U.S. 600, 612 (1974).
Nothing in the Nevada Constitution or NRS 2.120(2) requires a more stringent standard.
[Headnote 10]
Under NRAP 3C(d) trial counsel has the right to order a rough draft transcript of the trial
proceedings, in addition to filing a Fast Track statement pursuant to NRAP 3C(e). Thus,
under Nevada's Fast Track system, defendants are afforded the opportunity to review the
lower court proceedings before presenting their claims to this court. Further, NRAP 3C(k)
provides for written presentation of the arguments on appeal and a conference with one
justice if this court determines it is necessary.
115 Nev. 344, 352 (1999) Wood v. State
tice if this court determines it is necessary. Since the expansion of the Supreme Court and the
Court deciding most cases by sitting in three-justice panels, referral to a panel has replaced
the one-justice conference. A case that presents a substantial, substantive issue and is not
susceptible to a quick disposition, as the case at hand, is referred to the full court for decision.
Other states have implemented expedited criminal appellate systems. The State of New
Mexico employs a summary calendar system for criminal appeals. Unlike Nevada, this
system does not provide for the filing of a transcript before the appeal and allows no oral
argument. See New Mexico Rules of Appellate Procedure 12-210(D)(1), (4). In State v.
Ibarra, 864 P.2d 302, 304-05 (N.M. Ct. App. 1993), cert. denied, 513 U.S. 1157 (1995), the
New Mexico Court of Appeals held that even the lack of access to a trial transcript did not
violate defendants' due process rights as long as defendants were able to properly present
issues raised on appeal.
The only expedited criminal appeal system that has been held to violate defendants' due
process rights was in New Hampshire. In Bundy v. Wilson, 815 F.2d 125, 127 (1st Cir.
1987), the United States Court of Appeals for the First Circuit considered the New Hampshire
Supreme Court's discretionary practice of issuing a declination of acceptance order, which
disposed of criminal defendants' appeals without any indication regarding the court's views on
the merits. The notice of appeal, on which the court based its declination of acceptance order,
normally was not accompanied by a transcript of the proceedings below. Id. The First Circuit
held that the court's practice violated defendants' due process rights because it disposed of
their appeals without giving them a transcript or an opportunity to persuade the court to
accept their appeals. Id. at 135. Nevada's Fast Track system does not suffer from either of
these defects. There is an automatic right of appeal, a transcript is provided, and the
substantive arguments are considered by the court, albeit on shorter briefs.
We hold that Nevada's Fast Track system complies with the due process requirements of
the United States Constitution, the Nevada Constitution, and NRS 2.120.
CONCLUSION
We reverse the judgment of conviction of attempted murder, solicitation to commit
murder, and conspiracy, and remand this case to the district court for further proceedings
consistent with this opinion.
Maupin, J., concurring in part and dissenting in part:
I would affirm Wood's convictions for attempted murder and conspiracy.
115 Nev. 344, 353 (1999) Wood v. State
conspiracy. Because I agree that Wood could only be convicted of solicitation to commit
murder in the absence of a conviction for conspiracy arising from the alleged solicitation, the
conviction for solicitation would have to be vacated under my analysis. I also agree that our
fast track program does not violate either the U.S. or the Nevada Constitutions.
I agree that Bardin's statements introduced through Amanda Greene do not qualify as
non-hearsay per NRS 51.035(3)(e), and are not subject to any recognized hearsay exception.
However, while the various statements of Bardin and Anderson relative to these proceedings
are subject to serious credibility attacks, the admission of Amanda Greene's testimony, in my
view, amounts to harmless error.
First, the victim's testimony is that Bardin and Anderson were her assailants. Thus, it must
be conceded that both have lied about many of the details of the assault and the plans made in
aid of it. Second, the victim and Wood had lived together until one day prior to the assault
and the separation was precipitated by a physical altercation between the two. Thus, a clear
motive for the assault was established. Third, Rich Hussey, Wood's friend and roommate on
the night of the assault, overheard Bardin tell Wood after the attack that he had partially failed
in his mission. Further, Wood's response was not that of a person who seemed unaware of an
attempt to kill his estranged wife, [w]ell we'll deal with this in the morning and [sic] just go
to sleep.
It must be conceded that almost all of the witnesses to this subcultural affair have lied in
some important respect. This is to be expected in this type of case. Notwithstanding these
fabrications, I conclude that there was overwhelming evidence not subject to credibility
questions, which supports the convictions of Wood for conspiracy to commit murder and
attempted murder.
____________
115 Nev. 353, 353 (1999) Nevada Power Co. v. Haggerty
NEVADA POWER COMPANY, a Nevada Corporation, Appellant, v. RAYMOND
HAGGERTY, DIANE HAGGERTY, and HORSESHOE CLUB OPERATING
COMPANY, a Nevada Corporation, dba HORSESHOE CLUB & CASINO,
Respondents.
No. 31335
December 13, 1999 989 P.2d 870
Appeal from an order of the district court dismissing a third-party complaint pursuant to
NRCP 12(b)(5). Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
Employee sued a public utility to recover for injuries he sustained from an electrical shock
he received when he came into contact with wires attached to transformers which the utility
had installed in the basement of his employer's building. Utility filed a third-party complaint
against the employer for indemnification and/or contribution under the overhead power line
statutes. The district court dismissed the third-party complaint, and the utility appealed. The
supreme court, Becker, J., addressing two issues of first impression, held that: (1) the
Industrial Insurance Act does not immunize an employer from a utility's indemnity suit under
the overhead power line statutes, but (2) the basement transformers were not overhead lines
under the statutes.
Affirmed.
Agosti and Leavitt, JJ., dissented.
Cohen, Johnson, Day & Clayson and Dianna O. DeBeau, Las Vegas; Stephen F. Smith,
Associate General Counsel, Nevada Power Company, Las Vegas, for Appellant.
Crockett & Myers and James V. LaVelle, Las Vegas, for Respondents Haggerty.
Moran & Associates and Lew Brandon and Jill M. Lynne, Las Vegas, for Respondent
Horseshoe Club.
Smith & Kotchka, Las Vegas, for Amicus Curiae Nevada Self-Insurers Association.
In reviewing orders granting motions to dismiss, the supreme court considers whether the challenged
pleading sets forth allegations sufficient to establish the elements of a right to relief, accepting all factual
allegations in the complaint as true.
Resolution of conflicts between two statutes is an issue of law which can be resolved through the vehicle of a motion to dismiss.
As a general rule, an employer who provides compensation to an injured employee under the Industrial Insurance Act is insulated
from further liability to that employee. NRS 616B.612.
Employer will not be liable to a third party for indemnification arising out of an injury to an employee, absent an express
indemnification agreement or an independent duty between the employer and the third party. NRS 616B.612.
5. Electricity; Workers' Compensation.
The overhead power line statutes impose an independent duty upon employers to prevent employees from coming into contact with
a high voltage line in violation of the statutes. Thus the Industrial Insurance Act does not immunize an employer who
breaches this duty from an indemnity suit by the utility.
does not immunize an employer who breaches this duty from an indemnity suit by the utility. NRS 455.200 et
seq., 455.240(3), 616B.612.
6. Statutes.
Statutory provision which specifically applies to a given situation will take precedence over one that applies only generally.
7. Statutes.
When the legislature enacts a statute, the supreme court presumes that it does so with full knowledge of existing statutes relating to
the same subject.
8. Courts; Statutes.
Whenever possible, a court will interpret a rule or statute in harmony with other rules or statutes.
9. Statutes.
Statutory interpretation should avoid absurd or unreasonable results.
10. Electricity.
High voltage power lines or other electrical equipment located within a building are not within the definition of overhead line
under the overhead power line statutes. NRS 455.200(2).
Normally an issue not raised below cannot be raised for the first time on appeal.
12. Amicus Curiae; Appeal and Error.
Applicability of the overhead power line statutes to indoor electrical equipment, though first presented to the supreme court in an
amicus curiae brief, would be considered in the interests of judicial economy, where the question was solely a legal one of statutory
interpretation, in that none of the operative facts were disputed. NRS 455.200 et seq., 455.200(2).
13. Statutes.
When the language of a statute is plain and unambiguous, a court should give that language its ordinary meaning and not go
beyond it.
14. Statutes.
If a statute is susceptible to more than one natural or honest interpretation, it is ambiguous.
15. Statutes.
When a statute is ambiguous, it should be construed in line with what reason and public policy would indicate the legislature
intended.
16. Statutes.
Title of a statute can be considered in determining legislative intent.
17. Statutes.
Other words or phrases used in a statute or in separate subsections of a statute can be reviewed to determine the meaning and
purpose of the statute.
18. Statutes.
The subject matter of a statute and the policy to be effectuated can be used in statutory construction.
19. Electricity.
Transformers installed by a public utility in a closed off portion of a room in the basement of a large building to provide power to
that building were not installed above ground and thus were not within the definition of overhead line under the overhead power
line statutes. NRS 455.200(2), 455.240.
OPINION
By the Court, Becker, J.:
Raymond Haggerty (Haggerty), an employee of the Horseshoe Club Operating Company
(Horseshoe), suffered injuries by electrical shock when he came into contact with a power
line. The Horseshoe paid full workers' compensation coverage to Haggerty. Haggerty then
filed a negligence lawsuit against Nevada Power Company (Nevada Power). Nevada Power
filed a third-party complaint against the Horseshoe, seeking indemnification and contribution.
1

The Horseshoe moved to dismiss the third-party complaint on the ground that, once an
employer has paid workers' compensation coverage, the exclusive remedy/immunity
provisions of the workers' compensation scheme protect an employer from further liability.
Nevada Power argued that the Horseshoe owed an independent duty to Nevada Power under
Nevada's overhead power line statutes, NRS 455.200-NRS 455.250, and thus was not
shielded from liability under workers' compensation law.
The district court granted the Horseshoe's motion to dismiss, finding that the power line
statutes did not create an exception to employer immunity provided under workers'
compensation laws. The dismissal was certified pursuant to NRCP 54(b).
2

Amicus Curiae Nevada Self-Insurers Association (Association) argues that the provisions
of the overhead power line statutes do not apply to high voltage transformers located inside a
building.
We conclude that the overhead power line statutes do create an independent duty to
indemnify in favor of a utility and constitute an exception to the employer immunity
provisions of the workers' compensation laws. However, we also conclude that the electrical
equipment which caused Haggerty's injuries does not fall within the definition of an overhead
power line and affirm the district court's dismissal of the third-party complaint.
FACTS
Haggerty was employed by respondent Horseshoe as a maintenance engineer.
__________

1
The third-party complaint contained causes of action for implied and statutory indemnification, contribution
and negligence. As to negligence, Nevada Power alleged that the Horseshoe removed warning signs or a lock
installed by Nevada Power and that the removal of the signs or lock was a proximate cause of Haggerty's
injuries.

2
The district court dismissed all of the third-party complaint, not just the portion that dealt with statutory
indemnification pursuant to the power line
nance engineer. In the course of his employment, Haggerty entered a room located in the
basement of the Horseshoe containing electrical equipment. Within the room was a vault,
3
normally secured by a padlock, where high voltage transformer equipment owned by
appellant Nevada Power was located. The transformers were set on a platform rising from the
finished floor of the vault. Haggerty went into the vault, which had been left unlocked, while
conducting an inspection.
Once inside the vault, Haggerty noticed a vent that needed cleaning. The vent was located
next to an electrical bus bar that ran along the top of some high voltage transformers. When
Haggerty climbed a ladder to reach the vent, his shoulder touched wires relating to the bus
bar. Haggerty suffered electrical shock and various injuries. Prior to the accident, Nevada
Power was not informed by the Horseshoe that Haggerty would be working in close
proximity to the high voltage equipment. Nevada Power was aware of the fact that authorized
Horseshoe personnel would have access to the electrical room where the vault was located.
Haggerty applied for and received workers' compensation coverage under the Nevada
Industrial Insurance Act (NIIA). Pursuant to the NIIA, Haggerty cannot pursue litigation
against the Horseshoe.
Haggerty filed suit against Nevada Power on a negligence theory. Nevada Power filed a
third-party complaint against the Horseshoe seeking indemnification and/or contribution from
the Horseshoe pursuant to NRS 455.200-NRS 455.250. These statutes require a person to
notify a public utility company before conducting any work in the vicinity of high voltage
overhead power lines. The statutes also provide remedies for the utility company, against any
person responsible for complying with the statutes, for injuries to persons or property caused
by a failure to abide by the statutes.
The Horseshoe filed a motion pursuant to NRCP 12(b)(5) to dismiss Nevada Power's
third-party complaint. The Horseshoe argued that it was immune from further liability since it
had paid full workers' compensation coverage to Haggerty. The district court agreed and
granted the motion to dismiss.
__________
statutes. However, the pleading did not allege that Horseshoe's conduct in removing signs or locks gave rise to
an independent duty which would exempt those claims from the immunity provisions of the workers'
compensation statutes. Therefore the district court dismissed all of Nevada Power's claims against the
Horseshoe.

3
The term vault, as used by the parties, is a technical term referring to the segregated area where the high
voltage equipment was located.
DISCUSSION
I. Standard of Review
[Headnote 1]
In reviewing orders granting motions to dismiss, this court considers whether the
challenged pleading sets forth allegations sufficient to establish the elements of a right to
relief. Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 792, 858 P.2d 380, 381 (1993). In
making its determination, this court is to accept all factual allegations in the complaint as
true. Id. at 792, 858 P.2d at 381 (citing Marcoz v. Summa Corporation, 106 Nev. 737, 739,
801 P.2d 1346, 1347 (1990)).
[Headnote 2]
Given the complaint, the resolution of conflicts between the two statutes is an issue of law
which can be resolved through the vehicle of a motion to dismiss.
This case presents two issues of first impression:
1. Do the liability provisions of NRS 455.240 impose an independent duty upon an
employer who causes an employee to come into contact with a high voltage line in
violation of the statute, thus negating the employer's immunity from suit under NRS
616B.616(3)?
2. Does the definition of overhead line contained in NRS 455.200 encompass
electrical equipment located within a building?
II. Independent Duty Doctrine
Many states have enacted high voltage safety acts designed to decrease the number of
injuries suffered by people, particularly workers, as a result of accidental contact with high
voltage electrical equipment. These statutes require persons to contact the local utility
company before working near certain types of high voltage electrical systems. The utility
company can then ensure that the work is performed in a safe manner, without damage to
persons or property.
To encourage compliance with the statutes, legislatures have included penalty and liability
provisions in these acts. Violators are subject to both a civil fine for non-compliance and
liability to the utility for damage to the utility's property or the person or property of third
persons damaged by contact with high voltage lines. Nevada's version of these types of
statutes is set forth at NRS 455.200 through NRS 455.250.
4

__________

4
These acts do not apply to electrical lines that are buried in subsurface installations. Subsurface installations
are covered by NRS 455.080NRS 455.180. While violation of the subsurface installation rules can result in a
civil fine, those statutes do not include a private remedy provision similar to NRS 455.240.
Pursuant to NRS 455.220, if a person can reasonably foresee that he or she, or any part of a
tool or material used by him or her, is likely to come within a certain distance of an overhead
line carrying high voltage, the person cannot proceed without complying with the notice and
consent provisions of NRS 455.230. NRS 455.230 provides for notice to the applicable utility
company and consent to the work by the utility company. The utility company may also direct
how the work is to be performed and charge a fee for any services rendered by the company
to ensure the work is performed in a safe manner.
If a person violates a provision of the act, and the violation results in contact with an
overhead line, then that person is responsible for damages caused by the contact. Specifically,
If an act constituting a violation of any provision of this chapter causes contact with
an overhead line carrying high voltage, each person who committed the violation or
caused another person to commit the violation shall pay the public utility operating the
overhead line carrying high voltage for:
1. All damages to property of the public utility;
2. All reasonable costs and expenses incurred by the public utility as a result of the
contact; and
3. The costs and expenses incurred by the public utility as a result of the contact for
damages to third persons.
Each person who committed a violation causing the contact or who caused another
person to commit a violation causing the contact is jointly and severally liable for the
payment required by this section.
(Emphasis added.)
Nevada Power argues that, whenever a power company is sued as a result of harmful
contact with high voltage electrical equipment, NRS 455.240(3) permits the utility to file a
third-party indemnification action against the person who permitted the contact in violation of
NRS 455.220 and NRS 455.230. Moreover, since the statute refers to a person, Nevada
Power contends that an employer who violates the statute, resulting in harm to an employee,
is subject to a third-party action when the employee sues the utility.
In contrast, the Horseshoe argues that it is immune from liability under NRS 455.240
because NRS 616B.612 (formerly NRS 616.270) grants immunity to an employer who has
provided workers' compensation coverage to an injured employee. That statute provides, in
relevant part:
1. Every employer within the provisions of chapters 616A to 616D, inclusive, or
617 of NRS, and those employers who shall accept the terms of those chapters and
be governed by their provisions, as in those chapters provided, shall provide and
secure compensation according to the terms, conditions and provisions of those
chapters for any and all personal injuries by accident sustained by an employee
arising out of and in the course of employment.
ers who shall accept the terms of those chapters and be governed by their provisions, as
in those chapters provided, shall provide and secure compensation according to the
terms, conditions and provisions of those chapters for any and all personal injuries by
accident sustained by an employee arising out of and in the course of employment.
. . . .
4. 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
chapters 616A to 616D, inclusive, of NRS otherwise provided.
NRS 616B.612 (formerly NRS 616.270).
5

[Headnotes 3, 4]
As a general rule, an employer who provides compensation to an injured employee under
the NIIA is insulated from further liability to that employee. Oliver v. Barrick Goldstrike
Mines, 111 Nev. 1338, 1342, 905 P.2d 168, 171 (1995). Similarly, absent an express
indemnification agreement or an independent duty between the employer and the third party,
an employer will not be liable to a third party for indemnification arising out of an injury to
an employee. American Federal Savings v. Washoe County, 106 Nev. 869, 877-78, 802 P.2d
1270, 1275 (1990) (employer not immune under the NIIA when express contract requires
employer to indemnify a third party for compensation paid by the third party to the employer's
employee); Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 164-65, 561 P.2d 450, 454
(1977) (independent duty owed by employer to third party can result in implied indemnity,
but no independent duty when employer purchased a defective product from third-party
manufacturer); see also 7 Larson's Workers' Compensation Law, 76.40 at 14-819 & 76.50
at 14-857 (1998) (recognizing that third-party indemnity from employer can be based on an
express contract or on a separate legal duty).
[Headnote 5]
Nevada Power argues that the overhead power line statutes, NRS 455.200-NRS 455.250,
create an independent statutory duty. Thus, according to Nevada Power, an exception to the
rule of employer immunity was created by the passage of these acts.
__________

5
There is no significant difference between NRS 616.270 and NRS 616B.612. NRS 616B.612 states that the
workers' compensation statutes are found in chapters 616A to 616D, inclusive, or 617. NRS 616.270 states
that the workers' compensation statutes are found in this chapter. We have therefore chosen to refer to the
current version of the statute, rather than the version which existed at the time of the injury.
employer immunity was created by the passage of these acts.
6
The Horseshoe submits that
the remedies provided by NRS 455.240 do not address the issue of employer immunity and
that the legislature did not intend to create an exception when it enacted the overhead power
line statutes.
While this is an issue of first impression in Nevada, the identical issue has been resolved
in the courts of several other states. Four out of the five states that have addressed this issue
concluded that overhead power line statutes allow a power company to seek indemnification
from an employer, despite the employer's general immunity under workers' compensation
law. Each state has overhead power line statutes which provide that an employer can be held
liable to a power company under essentially the same conditions as found in Nevada's
overhead power line statutes. Each of these states also has an exclusivity provision in its
workers' compensation statutes, which is essentially identical to NRS 616B.612.
Texas was the first state to hold that its overhead power line statutes could provide a
power company with an indemnity action despite the exclusivity provision of a workers'
compensation law. Olson v. Central Power and Light Co., 803 S.W.2d 808, 812 (Tex. Ct.
App. 1991); Houston Lighting, Etc. v. Eller Outdoor Adv., 635 S.W.2d 133, 135 (Tex. Ct.
App. 1982). The Houston Lighting court held that an indemnity action is based on a breach of
an employer's statutory duty under Texas' overhead power line statutes and does not arise on
account of the employee's injury. The court stated that its reasoning was consistent with the
legislative intent to protect workers who perform duties in close proximity to overhead power
lines. Houston Lighting, 635 S.W.2d at 135.
7
The Olson court agreed with Houston Lighting
and further noted that the overhead power line statutes, being a later and more specific set of
statutes, should take precedence over the general workers' compensation statutes. Olson, 803
S.W.2d at 812.
Arizona courts have also held that an employer can be required to indemnify a power
company despite employer immunity under workers' compensation law.
__________

6
The Horseshoe makes a lengthy argument that an independent duty cannot be created by an implied
indemnity contract, citing to NRS 616B.609 (formerly NRS 616.265). However, this court has held that implied
indemnity can arise pursuant to an independent duty, despite NRS 616.265. Outboard Marine, 93 Nev. at
164-65, 561 P.2d at 454.

7
The Horseshoe argues that Houston Lighting was distinguished in Westchester Fire Ins. v. American
General, 790 S.W.2d 816, 818 (Tex. Ct. App. 1990). Westchester concerned an interpretation of an insurance
policy. One party cited to Houston Lighting. The Westchester court merely noted that Houston Lighting was
inapposite in construing a policy exclusion. Id. Thus, the holding of Houston Lighting was not modified in any
way by Westchester.
to indemnify a power company despite employer immunity under workers' compensation law.
Tucson Elec. v. Dooley-Jones and Assoc., 746 P.2d 510, 514 (Ariz. Ct. App. 1987); Tucson
Elec. v. Swengel-Robbins Const., 737 P.2d 1385, 1388 (Ariz. Ct. App. 1987).
The Swengel-Robbins court reasoned that the workers' compensation statutes limit the
employee's ability to sue his or her employer, but do not limit the employer's liability based
on a legal relationship with a third party, i.e., the power company. Swengel-Robbins, 737 P.2d
at 1388. The court also recognized that to bar an indemnity action would frustrate the
legislative intent to hold an employer liable for violations of the overhead power line statutes.
Id.
8

Oklahoma reached the same result in Travelers Insurance v. L.V. French Truck Service,
770 P.2d 551, 554 (Okla. 1988). The court noted that a third party's right to indemnity must
arise out of an independent legal relationship between the employer and the third party. The
court then concluded that Oklahoma's overhead power line statutes created such an
independent relationship. The court stated that the gravamen of Traveler's claim is
enforcement of a statutorily-created duty which is imposed without regard to whether any
other kind of obligation may result from the violation, i.e., responsibility to pay compensation
for an employee's on-the-job injury. Id.
The most recent case to allow indemnification, decided by the Supreme Court of Georgia,
is Flint Electric Membership v. Ed Smith Construction, 511 S.E.2d 160 (Ga. 1999). The court
concluded that the indemnification action was based on Georgia's overhead power line
statutes and not based on an action by an injured employee against an employer. Thus, the
court held that the exclusivity provision in Georgia's workers' compensation law did not
prevent a power line owner from seeking indemnity from an employer.
__________

8
The Horseshoe argues that Swengel-Robbins was distinguished in Citizens Utilities v. New West Homes,
848 P.2d 308, 311 (Ariz. Ct. App. 1992). According to the Horseshoe, Citizens Utilities stands for the
proposition that Arizona's overhead power line statutes were designed to protect employees of construction
companies, but not employees of all employers. The Citizens Utilities court, in dictum, merely noted that the
legislature, in passing the overhead power line statutes, intended to protect workers against the risk of
electrocution at construction sites. Id. at 312. The court did not hold that a power company could seek
indemnification solely from a construction employer.
Regardless, NRS 455.240 provides for liability for [e]ach person who committed the violation [of the
overhead power line statutes] or caused another person to commit the violation. . . . NRS 455.240. Statutes
should be interpreted according to their plain meaning whenever possible. McKay v. Bd. of Supervisors, 102
Nev. 644, 648, 730 P.2d 438, 440 (1986). An employer can be a person who caused another person to commit
the violation under NRS 455.240.
did not prevent a power line owner from seeking indemnity from an employer. Id.
Colorado is the only state to hold that a power company does not have a right to
indemnification under the state's overhead power line statutes. Rodriquez v. Nurseries, Inc.,
815 P.2d 1006, 1008 (Colo. Ct. App. 1991). The Rodriquez decision neither cited nor
addressed the decisions of the courts of Oklahoma, Arizona, and Texas. The Colorado court
determined that if the Colorado legislature had intended the overhead power line statutes to
operate as an exception to the exclusivity provision of workers' compensation, it would have
done so clearly. Id. The court noted that workers' compensation was not discussed in the
legislative history of the overhead power line statutes. Id. The court then held that an
employer was immune from suit by the power company. Id.
Regardless of the holdings, all of the cases recognize that there is an inherent conflict
between the plain meaning of the overhead power line statutes and the laws governing
employer immunity under workers' compensation statutes. Thus, the courts in Arizona,
Colorado and Texas reviewed legislative history in an attempt to resolve this conflict. The
Horseshoe argues that there is nothing in the legislative history to suggest that NRS 455.240
was intended to operate as an exception to the exclusivity provision of workers' compensation
and urges the court to follow Colorado and the Rodriquez holding. Conversely, Nevada
Power asserts that the legislature intended the overhead power line statutes to apply to all
persons, including employers, regardless of the workers' compensation laws. Thus Nevada
Power contends the court should follow the rationale set forth in the Arizona, Oklahoma and
Texas cases.
There is no legislative history in Nevada to support either position. The notes of the senate
and assembly committee hearings do show that the general purpose of the overhead power
line statutes was to prevent injuries to people who work near high voltage power lines.
However, the notes are not helpful in determining the purpose behind the liability and fee
portions of the statutes. While couched by the proponents of the legislation as a workers'
safety issue, members of the assembly questioned whether, given the civil penalties, the
sections involving fees and liability were really necessary to address the safety concerns.
Hearing on S.B. 400 Before the Assembly Health and Human Services Committee, 67th Leg.
(Nev., June 1, 1993).
Finally, there is no mention of workers' compensation issues in the record of the hearings.
Thus, the legislative history cannot resolve whether the legislature intended the statutes to
operate as an exception to workers' compensation immunity provisions. As the actual history
is of little help in determining the legislature's intent, we must turn to standard rules of
statutory construction to resolve the issue.
the actual history is of little help in determining the legislature's intent, we must turn to
standard rules of statutory construction to resolve the issue.
[Headnote 6]
[I]t is an accepted rule of statutory construction that a provision which specifically
applies to a given situation will take precedence over one that applies only generally. Sierra
Life Ins. Co. v. Rottman, 95 Nev. 654, 656, 601 P.2d 56, 57-58 (1979) (citing W.R. Co. v.
City of Reno, 63 Nev. 330, 172 P.2d 158 (1946)). The overhead power line statutes were
specifically enacted to protect all persons from the hazards associated with working in close
proximity to high voltage overhead power lines. The NIIA, on the other hand, provides a
general method for workers to be compensated for work-related injuries without the necessity
of suing their employers and proving negligence. See American Federal Savings v. Washoe
County, 106 Nev. 869, 875, 802 P.2d 1270, 1275 (1990) ([T]he overall structure and policy
of the NIIA indicates the Act's purpose to regulate the rights and obligations running between
an employer and an employee, as opposed to the rights and obligations running between an
employer and a third-party.). Moreover, while the NIIA is generally concerned with worker
health, it is not primarily a worker safety statutory scheme.
[Headnote 7]
In addition, the overhead power line statutes were passed after the establishment of
employer immunity under workers' compensation laws. When the legislature enacts a statute,
this court presumes that it does so with full knowledge of existing statutes relating to the
same subject. City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d
498, 500 (1985). While the power line and workers' compensation statutes do not involve the
same subject, they have sufficient similarities to warrant consideration of this rule. We agree
with the Olson court's rationale and conclude that NRS 455.240 should take precedence over
NRS 616B.612. Olson v. Central Power and Light Co., 803 S.W.2d 808 (Tex. Ct. App.
1991).
[Headnotes 8, 9]
Our holding is also consistent with several other rules of statutory construction. For
example, whenever possible, a court will interpret a rule or statute in harmony with other
rules or statutes. Bowyer v. Taack, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991); City
Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784 P.2d 974, 978 (1989). In
addition, statutory interpretation should avoid absurd or unreasonable results. General Motors
v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 34S {1995); Las Vegas Sun v. District
Court, 104 Nev. 50S, 511, 761 P.2d S49, S51 {19SS); Sheriff v. Smith, 91 Nev. 729, 733,
542 P.2d 440, 443 {1975).
v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995); Las Vegas Sun v. District Court,
104 Nev. 508, 511, 761 P.2d 849, 851 (1988); Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d
440, 443 (1975).
The people who are most likely to be injured around an overhead power line are
individuals who are working in the scope of their employment. If employers cannot be sued in
indemnification pursuant to NRS 455.240(3) for injuries sustained by their employees, an
important incentive for compliance involving the major beneficiaries of the act would be
eliminated. Thus, this interpretation would yield an unreasonable result. Finding that NRS
455.240 constitutes an exception to the employer immunity provision fully promotes the
purpose of the overhead power line statutes with minimal interference with the general
purpose of the workers' compensation laws. This is a more harmonious resolution of the
conflict between the two statutes than gutting the power line statute in favor of the workers'
compensation laws.
III. Definition of Overhead Power Line
[Headnotes 1012]
Having determined that NRS 455.240(3) creates an exception to employer immunity under
workers' compensation statutes, we turn to the applicability of that statute to power lines
attached to transformers located inside a building.
9
Overhead line means a bare or insulated electrical conductor installed above ground.
An electrical conductor is any device which channels electricity. See Random House
Dictionary 426 (2d Edition 1993). The transformers and wiring touched by Haggerty were
electrical conductors. The issue, then, is whether transformers installed in the basement of a
building to provide power to that building are "installed above ground" and within the
scope of an "overhead line."
__________

9
This issue was not litigated in the district court. Normally an issue not raised below cannot be raised for the
first time on appeal. Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983).
This argument was presented to the court in the amicus curiae brief filed by the Association. As the
interpretation of the statute is solely a question of law, rather than requiring the Horseshoe to raise the issue in
the district court in a summary judgment motion, in the interests of judicial economy, we have chosen to address
the matter at this time. It is not disputed that the Horseshoe failed to inform Nevada Power, pursuant to NRS
455.220 and 455.230, that Haggerty would be working in close proximity to high voltage equipment. It is also
undisputed that Nevada Power owned the transformers in the vault and was aware that Horseshoe employees
would be coming into the room where the vault was located.
installed above ground and within the scope of an overhead line.
The Association argues that the term above ground, together with the words overhead
line, means electrical conductors that are in the air. Overhead should be given its ordinary,
everyday meaning: over one's head; aloft; up in the air or sky. See Webster's New Universal
Unabridged Dictionary 1382 (1996). Transformers sitting on a platform of a finished floor
inside a building are not up in the air or sky and are not overhead. Finally, even if a
transformer housed within a building, but on a platform, might be overhead, if that
transformer is located in a basement, below the street level grade, i.e., underground, then it
cannot be overhead within the meaning of the statute.
Nevada Power contends that the term above ground means unburied. Thus, any
conductor not covered by soil is above the ground. The transformers in question were placed
on a shelf above the finished floor of the basement and over Haggerty's head. According to
Nevada Power, they were therefore above ground, overhead lines under NRS 455.200(2).
[Headnotes 13, 14]
When the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it. Reno Newspapers, 105 Nev. at 891, 784
P.2d at 977. However, if a statute is susceptible to more than one natural or honest
interpretation, it is ambiguous. See Randono v. CUNA Mutual Ins. Group, 106 Nev. 371,
374, 793 P.2d 1324, 1326 (1990).
[Headnote 15]
The fact that the dissent views the term above ground differently than the majority is
ample evidence that reasonable minds can disagree over the definition of overhead line in
the context of this statute. When a statute is ambiguous, it should be construed in line with
what reason and public policy would indicate the legislature intended.' Robert E. v. Justice
Court, 99 Nev. 443, 445, 664 P.2d 957, 959 (1983) (quoting Cannon v. Taylor, 87 Nev. 285,
288, 486 P.2d 493, 495 (1971)).
[Headnotes 1618]
Several factors can be used to determine legislative intent. The title of a statute can be
considered. See A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248,
1250 (1971). Other words or phrases used in the statute or separate subsections of the statute
can be reviewed to determine the meaning and purpose of the statute. Bd. of County Comm'rs
v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). Finally, the subject matter
of the statute and the policy to be effectuated can be used in statutory construction.
subject matter of the statute and the policy to be effectuated can be used in statutory
construction. Welfare Div. v. Washoe Co. Welfare Dep't., 88 Nev. 635, 503 P.2d 457 (1972).
The act in question, NRS 455.200NRS 455.250, is entitled Overhead Lines Carrying
High Voltage. This language presents an image of an outdoor, unenclosed electrical line.
Other sections of the statute also seem more consistent with outdoor, unenclosed electrical
equipment. For example, NRS 455.210(2) provides that the statute, under certain
circumstances, is not applicable to an employee of a cable antenna or communication services
system if the employee is making attachments to the structure supporting an overhead line
carrying high voltage. Finally, NRS 455.230(3) states that if a structure on which the
person is performing the work was already in existence when the public utility installed the
overhead line, then the fees required by the statute are waived. None of the above language is
dispositive of the issue, but it all suggests that the statute covers outdoor, not indoor,
electrical equipment.
Another factor supporting this conclusion is the use of the words above and ground
rather than the adjective aboveground. Webster's New Universal Unabridged Dictionary
(1996). Above means overhead, upstairs, or in the sky. Ground refers to the solid surface
of the earth. Thus, aboveground would be over the surface of the earth, not on the surface.
Aboveground, however, is defined as situated above or on the ground.
The comments and questions made by members of the legislature during the hearings
provide some insight into the purpose of the statute. References are made to crane operators
and people working under power lines. Hearing on S.B. 400 Before the Assembly Health
and Human Services Comm., 67th Leg. (Nev., June 1, 1993). Again, this suggests the purpose
was to protect people working in outdoor areas who might come into contact with power
lines, rather than electrical equipment which a utility company maintains in the basement of a
large building.
Finally, we need to examine whether the purpose of the statute would be frustrated if the
statute were not applied to this type of indoor electrical equipment. The statute was designed
to address two issues: (1) the safety of people working near high voltage overhead power
lines and (2) the protection of public utility property. It addresses these issues by requiring
people to contact the utility when they are performing work in close proximity to an overhead
electrical line. The statute does not require such notice for all types of electrical equipment. In
addition, the notice is required because the public utility cannot monitor all of its various
installations and lines or completely isolate these lines from surrounding structures and
activity.
ous installations and lines or completely isolate these lines from surrounding structures and
activity.
[Headnote 19]
In this instance, the electrical conductors, the transformers and the cables leading to and
from them were maintained by Nevada Power in a closed off portion of a room in the
basement of a large building. Major buildings have such on-site transformers. Nevada Power
had the ability to control access to the area and to enter into a written express indemnity
agreement with the owners of the building. Nevada Power already knew the maintenance staff
of the building might be working in proximity to the equipment and could take permanent
steps to prevent accidental contact. Indeed, in this case, such steps were taken, since the vault
containing the transformers was supposed to be padlocked.
If the overhead power line statutes were construed to apply in this situation, then each time
a Horseshoe employee conducted work in the electrical room of the building, the Horseshoe
might be required to contact Nevada Power, whether or not the employee was actually
working in the vault where the high voltage power lines are located, because the proximity of
the room and the vault could come within the parameters of the statute. Under the statute,
Nevada Power could also charge a fee for supervising the work to ensure no one came into
contact with the high voltage equipment. Given the number of times this would occur on a
weekly basis, it is unlikely that the legislature intended such a result, since the employees
could more easily be protected by Nevada Power restricting access to its equipment. Indeed,
applying NRS 455.240 to Nevada Power's indoor equipment would be more likely to
undermine worker safety, since there would be no incentive for Nevada Power to maintain
safety measures to protect people and property from accidental contact where Nevada Power
knew such contact was likely to occur. The statutory intent is better served by not imposing
the provisions of the overhead power line laws to high voltage electrical equipment located
within a building.
CONCLUSION
The provisions of NRS 455.200NRS 455.250 apply to an employer, whose employee is
injured by contact with an overhead power line, when the employer fails to notify the
appropriate public utility before allowing the employee to work in close proximity to high
voltage power lines in violation of the statute. Indoor high voltage power lines owned by a
public utility are not within the definition of overhead line as provided by NRS 455.200.
Accordingly, we affirm the district court's order dismissing Nevada Power's third-party
complaint against the Horseshoe.
10, 11

Rose, C. J., and Young, J., concur.
Shearing, J., concurring:
I agree that the judgment denying indemnification to Nevada Power Company should be
affirmed on the basis of the language in NRS 455.200. The legislature defined the term
overhead line as a bare or insulated electrical conductor installed above ground. NRS
455.200(2). The dissent may have persuasive policy arguments in favor of including high
voltage transformer equipment located in a basement of a building within the definition of
overhead line. However, the legislature did not make such an inclusion, and therefore this
court has no business holding otherwise.
Agosti, J., with whom Leavitt, J., agrees, dissenting:
I respectfully dissent. I would reverse the district court's order and remand the matter for
trial.
Initially, I note that the majority has determined that Raymond Haggerty's injuries were not
caused by contact with an overhead line within the meaning of NRS 455.200(2). It should
stop there. Its conclusion that the overhead power line statutes create an independent duty to
indemnify need not and should not be reached if the circumstances of this case do not bring it
within the parameters of the overhead power line statutes. As stated in City of North Las
Vegas v. Cluff, 85 Nev. 200, 201, 452 P.2d 461, 462 (1969), [t]his court is confined to
controversies in the true sense. The parties must be adverse and the issues ripe for
determination.
I also note that the issue of whether the power lines located in the Horseshoe Club's
basement are overhead line[s] within the meaning of NRS 455.200(2) was never raised in
the district court. This issue was first raised on appeal in an amicus curiae brief filed by the
Nevada Self-Insurers Association. For this reason, I believe that this court should not
consider this issue at this time.
__________

10
Nothing in this opinion is intended to bar Nevada Power from pursuing any other claim against the
Horseshoe based upon an allegation that the Horseshoe had an independent duty to Nevada Power which would
constitute an exception to employer liability under the workers' compensation statute. The record on appeal, for
example, does not indicate what agreement, if any, existed between Horseshoe and Nevada Power with respect
to securing the vault, maintaining warning signs or access to the vault by the Horseshoe employees.

11
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision
of this appeal.
See Diamond Enterprises, Inc. v. Lau, 113 Nev. 1376, 1378, 951 P.2d 73, 74 (1997) (It is
well established that arguments raised for the first time on appeal need not be considered by
this court.).
While I agree with the majority that NRS 455.240 permits indemnification if the
provisions of NRS 455.230 are violated, I dissent because I believe that the electrical
equipment which caused Haggerty's injuries does fit within the definition of an overhead
power line.
I agree with the majority that the term above ground is subject to a variety of
interpretations. I disagree that in the context of the statute in question, above ground
excludes a basement. A worker standing in a basement is certainly standing above the ground
below his feet. And the power line located near the roof of a room in a basement is certainly
overhead in the sense that it is above the worker. I also believe that nothing in the language of
NRS 455.200(2)
1
compels the conclusion that the line must be in the open air, outside or
above sea level. The simplest and best interpretation of this statute is that above ground
means not buried.
An important purpose of the overhead power line statutes is to promote worker safety.
This purpose is best accomplished if an employer is provided with an economic incentive to
notify the applicable utility whenever an employee must work within close proximity to a
power line maintained by the utility.
This court has consistently determined that a statute with a protective purpose should be
liberally construed in order to effectuate the intended protection. For example, in Tobin v.
Gartiez, 44 Nev. 179, 191 P. 1063 (1920), this court interpreted a statute which prohibited
unauthorized grazing on the land of a person with legal title. Id. at 186-87, 191 P. at 1065.
This court determined that legal title included a lessee because the statute was enacted to
protect those with a right to the exclusive occupation of the land. Id.
This court interpreted a mining statute in Ex Parte Douglass, 53 Nev. 188, 295 P. 447
(1931). In Douglass, this court held that a statute which required mine shafts to be equipped
with a safety cage, safety crosshead or safety skip required a safety cage and either a safety
crosshead or safety skip, rather than reading the statute as providing three alternatives,
because the statute was enacted to promote the safety of miners as they traveled up and down
mine shafts. Id. at 191-92, 295 P. at 448 (quoting Section 104S0, N.C.L as amended {1913
Nev. Stat., ch. 267, 1, at 422-23)).
__________

1
Overhead line' means a bare or insulated electrical conductor installed above ground.
10480, N.C.L as amended (1913 Nev. Stat., ch. 267, 1, at 422-23)).
More recently, this court interpreted a real estate licensing statute in Brill v. State Real
Estate Division, 95 Nev. 917, 604 P.2d 113 (1979). In Brill, the issue was whether a
twenty-five dollar fee charged by the defendant for access to an index of available homes for
sale and rent was an advance fee, thus mandating that the defendant obtain a real estate
license. This court determined that the fee was in fact an advance fee, because the purpose
of the real estate license statute was to protect the public from unqualified persons. Id. at
919-20, 604 P.2d at 114.
A few years later, this court decided Colello v. Administrator, Real Estate Div., 100 Nev.
344, 683 P.2d 15 (1984). In Colello, the appellants received a judgment against a real estate
licensee on the basis of fraud, misrepresentation and embezzlement. After appellants
unsuccessfully attempted to collect from the licensee, they obtained $10,000.00 from the Real
Estate Education, Research and Recovery Fund (Fund) pursuant to Nevada law. This court
held that appellants were only required to assign $10,000.00 of their judgment to the Fund
despite statutory language that the judgment creditor shall assign all his right, title and
interest in the judgment because the statute was intended to protect judgment creditors
without requiring them to forsake their entire judgment to collect a portion. Id. at 346 n.2 and
347-48, 683 P.2d at 16 n.2 and 16-17 (emphasis added) (NRS 645.8491 quoted in footnote 2).
I believe that Nevada's overhead power line statutes should be liberally construed as were
the statutes in the noted cases. I believe a liberal construction is all the more compelling when
the protective purpose of a statute involves physical safety. As previously stated, the purpose
of the statutes in question here is to promote worker safety. The legislature determined it
could best do so if it provided an incentive for an employer to report work conducted in
proximity to power lines. Neither the statute nor the legislative history distinguishes between
outdoor and indoor power lines. The danger posed to an employee is certainly not reduced if
the power line is located indoors, as demonstrated by what happened to Haggerty. I believe
that the purpose of the overhead power line statutes would be best accomplished if the
statutes were interpreted to apply to all exposed power lines, without regard to whether they
are located outside or inside, on a wooden pole or in a basement.
Finally, the majority bases its decision, in part, on the concern that a ruling for Nevada
Power would mean that Nevada Power might charge repeated supervisory fees to the
Horseshoe Club whenever an employee works near the electrical room.
might charge repeated supervisory fees to the Horseshoe Club whenever an employee works
near the electrical room. Nothing exists in the record to support this assertion. This court has
no power to look outside of the record of a case. Carson Ready Mix v. First Nat'l Bank, 97
Nev. 474, 476, 635 P.2d 276, 277 (1981) (quoting Alderson v. Gilmore, 13 Nev. 84, 85
(1878)).
For all of the above reasons, I would reverse the order of the district court and remand this
matter for trial.
____________
115 Nev. 372, 372 (1999) Dillard Department Stores v. Beckwith
DILLARD DEPARTMENT STORES, INC., a Delaware Corporation; and DILLARD'S
NEVADA, INC., a Nevada Corporation, Appellants, v. DELORIS BECKWITH, Respondent.
No. 31378
December 13, 1999 989 P.2d 882
Appeal from a judgment on jury verdict for constructive retaliatory discharge against
public policy and intentional infliction of emotional distress. Eighth Judicial District Court,
Clark County; Mark W. Gibbons and Don P. Chairez, Judges.
Former area sales manager brought tortious constructive discharge and intentional
infliction of emotional distress claims against department store chain, relating to self-insured
store's demotion of former manager after she filed workers' compensation claim. The district
court entered judgment on jury's verdict for former manager. Store appealed. The supreme
court, Leavitt, J., held that: (1) instruction on return-to-work priorities under Industrial
Insurance Act was proper, (2) store's demotion of former manager violated public policy, (3)
evidence established intentional infliction of emotional distress, (4) error was harmless in
instruction on former manager's duty to mitigate damages, and (5) punitive damages award of
more than $1.8 million was not excessive.
Affirmed.
[Rehearing denied February 22, 2000]
John Peter Lee, Ltd., and Barney C. Ales and Paul C. Ray, Las Vegas, for Appellants.
Donald J. Campbell & Associates and J. Colby Williams, Las Vegas, for Respondent.
1. Master and Servant.
Employees are presumed to be employed at-will unless the employee can prove facts legally sufficient
to show a contrary agreement was in effect.
At-will employment gives the employer the right to discharge an employee for any reason, so long as the reason does not violate
public policy.
Statutory scheme for administration of Industrial Insurance Act did not supersede or otherwise affect the case law regarding a
tortious discharge of an employee in violation of public policy. NRS 616D.030.
Instruction, in injured employee's action for tortious constructive discharge in violation of public policy, that a self-insured
employer must follow certain priorities under the Industrial Insurance Act as to returning an injured employee to work did not
improperly create a strict liability standard, where the priorities were offered only to show the state's public policy regarding injured
workers. NRS 616C.530.
Self-insured employer's failure to follow priorities set forth in Industrial Insurance Act for returning injured employee to work, and
employer's improper request that injured employee return to work against doctor's orders, violated public policy, as element of tortious
constructive discharge in violation of public policy. NRS 616D.030.
6. Damages.
The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct with either the intention of, or
reckless disregard for, causing emotional distress; (2) plaintiff's having suffered severe or extreme emotional distress; and (3) actual or
proximate causation.
7. Damages.
Evidence that self-insured employer demoted injured area sales manager because of her workers' compensation claim, that other
employees openly speculated as to reason for the demotion, and that manager's complaints to employer that her job situation was
having adverse effect on her health established employer's intentional infliction of emotional distress.
Error in using the phrase substantially equivalent jobs, instead of reasonable alternative employment, in instruction on
employee's duty to mitigate damages by accepting other employment was harmless in employee's action for tortious constructive
discharge against public policy.
Evidence that former area sales manager contacted three other department stores regarding employment as an area sales manager,
but that most stores had policy of promoting from within, established manager's adequate efforts to mitigate damages for purposes of
manager's claim of tortious constructive discharge against public policy.
10. Damages; Master and Servant.
Department store chain's nationwide worth, rather than its worth solely in Nevada, could be considered when
determining punitive damages for store's tortious constructive discharge of area sales manager in violation
of public policy and intentional infliction of emotional distress.
solely in Nevada, could be considered when determining punitive damages for store's tortious constructive
discharge of area sales manager in violation of public policy and intentional infliction of emotional distress.
11. Damages; Master and Servant.
Punitive damages of more than $1.8 million for department store chain's tortious constructive discharge of area sales manager and
intentional infliction of emotional distress was not excessive, where the award would not financially destroy or annihilate the
department store chain.
12. Interest.
Interest on punitive damages award accrued at the legal rate from the date of the judgment on the jury verdict.
13. Costs.
Department store's rejection of former area sales manager's rockbottom offer to settle claims of tortious constructive discharge
and intentional infliction of emotional distress for total of $187,000 was unreasonable, for purposes of offer of settlement statute and
rule, and thus, former manager was entitled to award of attorney's fees as prevailing party at trial. NRS 17.115; NRCP 68.
14. Costs.
Purpose of offer of settlement statute and rule is to save time and money for the court system, the parties, and the taxpayers by
rewarding a party who makes a reasonable offer and punishing the party who refuses to accept such an offer. NRS 17.115; NRCP 68.
OPINION
By the Court, Leavitt, J.:
Deloris Beckwith, sixty-four years of age, was a twenty-five-year employee of Dillard
Department Stores (Dillard) and an area sales manager for nineteen years. She injured her
back at work and filed a workers' compensation claim. Dillard is a self-insured employer.
Beckwith was asked to return to work, but her doctor refused to release her because of her
condition. When Beckwith failed to return to work, Dillard filled her job with another
manager. Upon her return, Beckwith was demoted to an entry-level sales position with a
forty-percent reduction in salary and benefits. She resigned and commenced this action.
FACTS
Beckwith was an exemplary employee of Dillard who had never received an annual review
rating of less than satisfactory and most of her reviews rated her very good or
outstanding. Her salary was $41,000 per year, and she enjoyed a benefit package that
included medical coverage and a retirement plan.
Beckwith strained her back at work while attempting to move a large mahogany table. Her
injuries rendered her unable to walk upright or without assistance. A doctor recommended by
Dillard certified her as temporarily disabled secondary to acute lumbosacral strain. Another
doctor referred by Dillard agreed. The store manager requested that Beckwith return to work
prior to her release from the doctor, even though the manager knew she had not been
released. Beckwith failed to return to work when requested, and another person was given her
position. The store manager later informed her by telephone that she had been replaced.
Beckwith returned to Dillard for light duty work approximately a month after the injury.
She was assigned an entry-level position, which included document filing. Thereafter, she
was asked to leave a weekly department managers' meeting because she no longer served in a
management position. All of the other area sales managers and assistant managers observed
Beckwith's humiliation as a result of the incident.
Beckwith was ultimately given two choices, resignation or a permanent entry-level sales
associate position with a forty-percent cut in wages and benefits. She accepted the demotion
because she was her sole support and needed the medical benefits. Beckwith was assigned to
the ladies' ready-to-wear division, one of the most difficult departments in which to make
daily sales quotas. If entry-level sales associates did not make their daily quotas, they could
be docked part of their pay or be fired. After Beckwith began working in sales, the teenage
sales associates would laugh at her behind her back, and additionally, other Dillard employees
in the store talked about Beckwith's situation and why she was demoted. At one point when
Beckwith walked into the employee lounge at lunchtime, the room went silent and people
stared at her. Beckwith twice complained to management about the humiliation she was
experiencing and its effect on her health. She finally resigned one week before her
twenty-fifth year with Dillard.
At the time Beckwith was released to return to work there were two area sales manager
positions open for which she was qualified, but management determined she was not eligible
for an area sales manager position, a post she held prior to her demotion. She was notified the
demotion was because she took time off for workman's [sic] comp.
Beckwith fell into a depression and was treated by a psychiatrist for a major depressive
disorder. She was treated with antidepressant medication and psychotherapy.
After leaving her job, Beckwith filled out applications for employment at several
department stores, called friends who worked at different stores to inquire if any positions
were open and consulted a friend who owned an employment agency in attempts to find
work.
worked at different stores to inquire if any positions were open and consulted a friend who
owned an employment agency in attempts to find work. She called Sears and J.C. Penney's to
see if they had openings and filled out applications. She also filed an application with
Neiman-Marcus. Nothing came of these efforts. At trial evidence was presented that most
department stores have a policy to promote from within and for that reason, Beckwith would
not have a chance to be hired as a manager at any comparable department store.
The jury awarded $424,028 in compensatory damages on the tortious constructive
discharge claim and $200,000 on the intentional infliction of emotional distress cause of
action. The jury also awarded punitive damages and after reduction of each claim to three
times the compensatory damages the punitive damages totaled $1,872,084. The total damages
awarded were $2,496,112. The court also awarded attorney's fees in the amount of $518,455
pursuant to NRS 17.115 and NRCP 68.
DISCUSSION
Tortious Constructive Discharge
[Headnotes 1, 2]
Employees in Nevada are presumed to be employed at-will unless the employee can
prove facts legally sufficient to show a contrary agreement was in effect. Vancheri v. GNLV
Corp., 105 Nev. 417, 777 P.2d 366 (1989). The at-will rule gives the employer the right to
discharge an employee for any reason, so long as the reason does not violate public policy.
Vancheri at 421, 777 P.2d at 369; K Mart Corp. v. Ponsock, 103 Nev. 39, 47, 732 P.2d 1364,
1369 (1987).
Previously, we have specifically held that the at-will employment rule is subject to
limited exceptions founded upon strong public policy; and the failure of the legislature to
enact a statute expressly forbidding retaliatory discharge for filing workmen's compensation
claims does not preclude this Court from providing a remedy for what we conclude to be
tortious behavior. Hansen v. Harrah's, 100 Nev. 60, 63, 675 P.2d 394, 396 (1984).
[Headnote 3]
Dillard claims a private cause of action for tortious discharge for filing a workers'
compensation claim no longer exists in Nevada after the legislature, in 1995, passed NRS
616D.030:
1. No cause of action may be brought or maintained against an insurer or a
third-party administrator who violates any provision of this chapter or chapter 616A,
616B, 616C or 617 of NRS.
2. The administrative fines provided for in NRS 616B.318 and 616D.120 are the
exclusive remedies for any violation of this chapter or chapter 616A, 616B, 616C or
617 of NRS committed by an insurer or a third-party administrator.
We have recognized:
[R]etaliatory discharge by an employer stemming from the filing of a workmen's
compensation claim by an injured employee is actionable in tort. Since both the cause
of action and the remedy are governed by the law of torts, there is no basis for
administrative relief within the framework of the state industrial insurance system . . . .
Hansen, 100 Nev. at 64-65, 675 P.2d at 397.
The statutory scheme applies only to the administration of the act. The statutes set forth
fines to be paid for violations of the act, such as not paying claimants properly, or at all. It
also provides that a self-insured employer may lose its certification if it violates the workers'
compensation statutes. NRS 616D.030, as part of this statutory scheme, does not affect the
case law of tortious discharge against public policy.
[A] tortious constructive discharge is shown to exist upon proof that: (1) the employee's
resignation was induced by action and conditions that are violative of public policy; (2)
a reasonable person in the employee's position at the time of resignation would have
also resigned because of the aggravated and intolerable employment actions and
conditions; (3) the employer had actual or constructive knowledge of the intolerable
actions and conditions and their impact on the employee; and (4) the situation could
have been remedied.
Martin v. Sears, Roebuck and Co., 111 Nev. 923, 926, 899 P.2d 551, 553 (1995) (citing
Brady v. Elixir Industries, 196 Cal. App. 3d 1299, 1306 (Ct. App. 1987)). Here, the jury was
properly instructed on the above elements.
We have held that Nevada's workmen's compensation laws reflect a clear public policy
favoring economic security for employees injured while in the course of their employment.
Hansen, 100 Nev. at 63, 675 P.2d at 396.
[Headnote 4]
Beckwith also requested and received a jury instruction concerning the provisions of NRS
616C.530, which provides that an insurer shall follow certain priorities in returning an injured
employee to work, the first priority being to [r]eturn the injured employee to the job he had
before his injury. Dillard complains that the instruction created a strict liability standard
and in effect directed a verdict against it.
that the instruction created a strict liability standard and in effect directed a verdict against it.
[Headnote 5]
We disagree. The instruction, which by its terms only applies to operatives of a public or
private workers' compensation plan, was offered to demonstrate Nevada's policy with regard
to injured workers. The instruction was not offered as an assertion of strict liability or that a
violation of NRS 616C.530 is a claim for which a worker may receive monetary damages.
Beckwith's claim was that Dillard violated public policy by requesting her to return to work
prior to being medically released. Dillard then punished Beckwith for her refusal to return to
work against doctor's orders by demoting her. Clearly, the public policy of this state favors
economic security for employees injured while in the course of their employment. We
conclude that the failure to follow the priorities set forth in the statute, together with Dillard's
improper request that Beckwith return to work against doctor's orders, was a direct violation
of that public policy. One of the elements necessary to prove constructive tortious discharge
is that the action by the employer was in violation of public policy. The instruction was
proper for this purpose. The judgment as to the tortious constructive discharge is affirmed.
Intentional Infliction of Emotional Distress
[Headnotes 6, 7]
The elements of a cause of action for intentional infliction of emotional distress are (1)
extreme and outrageous conduct with either the intention of, or reckless disregard for, causing
emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and
(3) actual or proximate causation. Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 92 (1981)
(citation omitted). We have also held the tort of intentional infliction of emotional distress is
recognizable in the employment termination context. Shoen v. Amerco, Inc., 111 Nev. 735,
747, 896 P.2d 469, 476 (1995). In the present case, there was substantial evidence presented
to support the intentional infliction of emotional distress claim. [A] jury's verdict supported
by substantial evidence will not be overturned unless the verdict is clearly erroneous when
viewed in light of all the evidence presented. Frances v. Plaza Pacific Equities, 109 Nev. 91,
94, 847 P.2d 722, 724 (1993) (citing Bally's Employees' Credit Union v. Wallen, 105 Nev.
553, 555-56, 779 P.2d 956, 957 (1989)) (emphasis deleted).
Dillard did not offer Beckwith, a longtime employee, her previous position as an area sales
manager when she returned to work after her injury.
work after her injury. This refusal occurred despite the fact that two other area sales manager
positions were open for which Beckwith was qualified. She was also forced to take an
entry-level position with a forty-percent reduction in salary and was told her demotion was
directly related to her claim for workers' compensation. Ultimately fellow employees openly
speculated as to the reason for Beckwith's demotion, and her complaints to management that
her job situation was having an adverse effect on her health were ignored.
The elements of an intentional infliction of emotional distress claim are supported by the
evidence and record. The judgment as to intentional infliction of emotional distress is
affirmed.
Compensatory Damages
Dillard asserts no compensatory damages should be allowed because the evidence did not
show that Beckwith took steps to mitigate her damages, and her economic expert's figures
were calculated on the assumption she would retire at age seventy-five. The jury was given
instruction number forty-one, which reads as follows:
Plaintiff Beckwith has a duty to mitigate her damages, that is an affirmative burden to
act to minimize her damages. Defendants had the burden of proving that plaintiff failed
to mitigate her damages. To satisfy this burden, defendants must prove that during the
time in question (1) there were substantially equivalent jobs available, which plaintiff
Beckwith could have obtained, and (2) that plaintiff failed to use reasonable diligence
in seeking one.
The phrase substantially equivalent means employment which affords virtually
identical promotional opportunities, compensation, job responsibilities, working
conditions, and status as the position which plaintiff Beckwith previously held with the
defendants.
The second paragraph of the instruction is taken from Sellers v. Delgado College, 902 F.2d
1189, 1193 (5th Cir. 1990). Dillard objected because the phrase substantially equivalent
was applied in a Title VII federal case. Instead, Dillard suggested the second paragraph
should read she has a duty to seek reasonable alternative employment; the Plaintiff should
accept any work which she could perform. This language was taken from Southern Pacific
Transportation Company v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978). That
case involved a personal injury action under the Federal Employers' Liability Act and was not
a tortious constructive discharge case. In Fitzgerald we also said it was unclear whether any
bona fide offers were in fact made, or whether they related to reasonable alternative
employment for a man with respondent's disabilities."
fact made, or whether they related to reasonable alternative employment for a man with
respondent's disabilities. Id.
[Headnote 8]
In a similar wrongful discharge case we approved of an instruction which provided that an
employee's duty to mitigate damages included the seeking and acceptance of alternate
employment. Beales v. Hillhaven, Inc., 108 Nev. 96, 101, 825 P.2d 212, 215 (1992). In
Beales we recognized that [t]he jury was instructed that Beales had the obligation to mitigate
her damages by seeking other employment. She testified that she could not find employment
in her field once she returned to Reno in 1988. Apparently, the jury believed her. Beales at
102, 825 P.2d at 216 (emphasis added). We conclude that the terms substantial equivalent
and reasonable alternative are not so disparate in meaning as to warrant reversal. Thus, the
error in the verbiage was harmless.
1

[Headnote 9]
Here there was ample testimony by Beckwith concerning her efforts to mitigate her
damages. She was examined and cross-examined on this point. The jury was properly
instructed on Beckwith's duty to mitigate her loss. The question was one for the jury and
beyond the scope of our review. United Assn. Journeymen v. Stine, 76 Nev. 189, 218, 351
P.2d 965, 980-81 (1960) (citations omitted).
Dillard failed to present any expert evidence to counter Beckwith's economic expert
concerning her future losses. Once the jury found Beckwith was entitled to damages, it was
entitled to weight [sic] the variables and award . . . the appropriate amount. Beales at 102,
825 P.2d at 216. The compensatory damages awarded by the jury are proper and supported by
substantial evidence in the record.
Punitive Damages
A plaintiff is never entitled to punitive damages as a matter of right; their allowance or
denial rests entirely in the discretion of the trier of fact. Ramada Inns v. Sharp, 101 Nev.
824, 826, 711 P.2d 1, 2 (1985). It is the responsibility of the trial court to determine whether,
as a matter of law, the plaintiff has offered substantial evidence of malice in fact to support a
punitive damages instruction. Wickliffe v. Fletcher Jones of Las Vegas, 99 Nev. 353, 356,
661 P.2d 1295, 1297 (1983) (citations omitted). Punitive damages are limited to three times
the compensatory damages, where, as here, compensatory damages are $100,000 or
more.
__________

1
We note that trial courts should refrain from using the instruction given in this case. Beales states the
proper standard.
damages, where, as here, compensatory damages are $100,000 or more. NRS 42.005(1)(a).
[Headnote 10]
Dillard objected to the trial judge's decision to allow the nationwide worth, rather than just
the worth of Dillard's Nevada, Inc., to determine the amount of punitive damages to award.
We have previously allowed a nationwide worth when a jury decides punitive damages.
Specifically, we have recognized [t]he wealth of a defendant is directly relevant to the size
of an award, which is meant to deter the defendant from repeating his misconduct as well as
punish him for his past behavior. Ainsworth v. Combined Ins. Co., 104 Nev. 587, 593, 763
P.2d 673, 677 (1988) (citing Midwest Supply, Inc. v. Waters, 89 Nev. 210, 213, 510 P.2d
876, 878-79 (1973)).
[Headnote 11]
The general rule concerning the award of excessive punitive damages has been previously
stated by this court:
Heretofore, we have recognized the subjective nature of punitive damages and the
absence of workable standards by which to evaluate the propriety of such an award.
Accordingly, we have allowed that determination to rest with the discretion of the trier
of the fact unless the evidence introduced at trial shows that the amount awarded by the
jury would financially destroy or annihilate the defendant in which event we would
attempt an appropriate adjustment of the award.
Hale v. Riverboat Casino, Inc., 100 Nev. 299, 306, 682 P.2d 190, 194 (1984) (citations
omitted).
In this case, the trier of fact determined the amount of punitive damages, and the trial court
reduced the sum to an amount allowed by the statute. The award will not financially destroy
or annihilate Dillard. Therefore, the punitive damage award is affirmed.
[Headnote 12]
Beckwith is entitled to post-judgment interest on the punitive damage award. We recently
modified our ruling in Ainsworth concerning post-judgment interest on punitive damages. We
held that interest should accrue to compensate a party for the loss of the use of the money
awarded in the judgment until paid. See Wohlers v. Bartgis, 114 Nev. 1249, 969 P.2d 949
(1998); Powers v. United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998).
Accordingly, Beckwith's punitive damage award shall accrue interest at the legal rate from the
date of the judgment on the jury verdict.
Attorney's Fees
[Headnotes 13, 14]
Dillard objects to the award of attorney's fees to Beckwith. Prior to trial an offer of
settlement was made by Beckwith pursuant to NRS 17.115 and NRCP 68. She agreed to
settle the matter for a total of $187,000, broken down to $93,500 as to each of the two Dillard
entities. The purpose of NRS 17.115 and NRCP 68 is to save time and money for the court
system, the parties and the taxpayers. They reward a party who makes a reasonable offer and
punish the party who refuses to accept such an offer. Muije v. A North Las Vegas Cab Co.,
106 Nev. 664, 667, 799 P.2d 559, 561 (1990).
It is within the discretion of the trial court judge to allow attorney's fees pursuant to Rule
68 and [u]nless the trial court's exercise of discretion is arbitrary or capricious, this court
will not disturb the lower court's ruling on appeal. Schouweiler v. Yancey Co., 101 Nev.
827, 833, 712 P.2d 786, 790 (1985).
Dillard claims it litigated its defense in good faith and it was not bad faith for it to reject
Beckwith's offer. We have set forth the factors a trial judge must exercise in its discretion
regarding the allowance of attorney's fees:
(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendant's
offer of judgment was reasonable and in good faith in both its timing and amount; (3)
whether the plaintiff's decision to reject the offer and proceed to trial was grossly
unreasonable or in bad faith; and (4) whether the fees sought by the offeror are
reasonable and justified in amount.
Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).
The trial judge, in a separate hearing, found it was unreasonable to reject such a
rock-bottom offer given at the beginning of the case before any discovery expense had been
incurred. The trial court considered the quality of the representation at trial, the reputation of
the lawyers, their hourly rate of billing, the timing and reasonableness of the offer and all of
the necessary factors set forth in Beattie. The trial judge deducted from the total amount of
attorney's fees sought the amount Dillard had previously paid as sanctions for discovery
abuses. There was no abuse of discretion on the part of the trial judge, the award of attorney's
fees was proper and it is affirmed.
The judgment on the jury verdict for compensatory and punitive damages is affirmed.
Rose, C. J., Young, Shearing, Agosti and Becker, JJ., concur.
Maupin, J., concurring:
I agree with the result reached by the majority. I write separately to note my disagreement
with the majority's affirmation of the instruction containing the language from NRS
616C.530. That provision sets priorities for workers' compensation insurers in their efforts to
return injured workers to work. The priorities articulated do not create a legal standard
governing an employer's re-assimilation of an injured worker to the work place. I can see no
legislative intent to that effect. Thus, the instruction was couched in terms of a specific duty
that did not apply to employers. However, because the statutory language did not add a great
deal to the standard of recovery that respondent was required to satisfy below, the giving of
the statutory instruction was harmless error.
I also wish to emphasize in this separate opinion my view that the enactment of NRS
616D.030 was in no way calculated to overturn our decision in Hansen v. Harrah's, 100 Nev.
60, 675 P.2d 394 (1984), and its progeny.
___________
115 Nev. 383, 383 (1999) Sullivan v. State
CARL OTIS SULLIVAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31991
December 13, 1999 990 P.2d 1258
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count each of
robbery with the use of a deadly weapon, burglary, and possession of stolen property. Second
Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant pleaded guilty in the district court to robbery with use of deadly weapon,
burglary, and possession of stolen property. Defendant appealed. The supreme court held that:
(1) state's agreement in plea bargain to make a particular sentencing recommendation does
not by its terms restrict state's right to argue or present facts in favor of the sentence
recommendation, overruling Statz v. State, 113 Nev. 987, 944 P.2d 813 (1997); and (2)
prosecutor's comments about defendant's criminal record and circumstances of the instant
offenses did not breach state's plea agreement to concur in sentencing recommendation of
Division of Parole and Probation, where the comments supported Division's recommendation
of consecutive, rather than concurrent, sentences.
Remanded.
Michael R. Specchio, Public Defender, and Cheryl Bond, Deputy Public Defender,
Respondent.
1. Criminal Law.
The state's violation of either the terms or the spirit of the plea agreement requires reversal.
2. Criminal Law.
A plea agreement is construed according to what the defendant reasonably understood when he or she entered the plea.
3. Criminal Law.
Under the contemporaneous objection rule, defendant's failure to object at trial precludes appellate review.
4. Criminal Law.
Supreme court may address plain error or issues of constitutional dimension sua sponte.
Defendant's allegation that state breached the plea agreement by advocating for a sentence it had agreed to recommend implicated
due process, and thus, appellate review was warranted regardless of defendant's failure to object in the trial court. U.S. Const. amend.
14.
6. Criminal Law.
Although a defendant's failure to object in the trial court does not necessarily preclude appellate review of an alleged breach of a
plea agreement for plain error or issues of constitutional dimension, such a failure to object may be considered as evidence of the
defendant's understanding of the terms of a plea agreement.
7. Criminal Law.
The requirement that the state explicitly retain the right to present facts and argument applies where the plea bargain is for the state
to stand silent or make no recommendation at sentencing.
8. Criminal Law.
Where the state promises not to make a sentencing recommendation, it may nonetheless provide presentence information to the
Division of Parole and Probation without violating the plea agreement.
9. Criminal Law.
Even where the state has agreed in a plea bargain to stand silent or make no recommendation regarding sentencing, it may
nonetheless correct factual misstatements and provide the court with relevant information that is not in the court's possession.
10. Criminal Law.
Where the state agrees in a plea bargain to make a particular sentencing recommendation, the agreement does not by its terms
restrict the state's right to argue or present facts in favor of the sentence recommendation; overruling Statz v. State, 113 Nev. 987, 944
P.2d 813 (1997).
11. Criminal Law.
The state's promise to recommend a sentence does not impose on a prosecutor an implied duty to affirmatively or enthusiastically
advocate the terms of a plea bargain.
12. Criminal Law.
The state is not required to explicitly reserve the right to argue in favor of a recommended sentence
where it has promised to recommend a certain sentence.
13. Criminal Law.
In arguing in favor of a sentencing recommendation that the state has agreed to make, the prosecutor must refrain from either
explicitly or implicitly repudiating the agreement.
14. Criminal Law.
Prosecutor's comments about defendant's criminal record and the circumstances of the instant offenses did not breach state's plea
agreement to concur in sentencing recommendation of Division of Parole and Probation, where the comments supported division's
recommendation of consecutive, rather than concurrent, sentences.
OPINION
Per Curiam:
The issue before this court is whether the state breaches an agreement to concur with the recommendation of the Division of Parole and
Probation by advocating in favor of the recommendation.
1
We conclude that the state may advocate in favor of
a sentence that it has agreed to recommend as part of a plea agreement so long as the state
does not explicitly or implicitly seek to persuade the sentencing court to impose a harsher
sentence than that which the state agreed to recommend. We further conclude that the state
did not breach the plea agreement. However, we remand this case for the district court to
correct what appears to be an error in the judgment of conviction.
FACTS
The state charged appellant Carl Otis Sullivan by information with one count each of
robbery with the use of a deadly weapon, burglary, and possession of stolen property.
Pursuant to plea negotiations, Sullivan agreed to plead guilty to the charges. In exchange for
Sullivan's guilty plea, the state agreed to concur with the recommendation of the Division of
Parole and Probation.
__________

1
Appellant Carl Otis Sullivan also contends that the state failed to provide him with notice that one of the
victims would refer to prior bad acts during his victim impact testimony and, therefore, this case should be
remanded for a new sentencing hearing. We disagree. The district court sustained appellant's objection to the
challenged testimony and stated that it would not consider that part of the testimony. We therefore conclude that
a new sentencing hearing is not warranted. See Buschauer v. State, 106 Nev. 890, 894, 804 P.2d 1046, 1049
(1990).
the recommendation of the Division of Parole and Probation. The district court conducted a
thorough plea canvass and accepted Sullivan's guilty plea.
The Division of Parole and Probation prepared a presentence report. Therein, the Division
recommended the following sentences, all to be served consecutively: 35 to 156 months for
robbery; 22 to 96 months for burglary; and 22 to 96 months for possession of stolen property.
At sentencing, defense counsel argued in favor of concurrent sentences based on a letter
from a doctor, which had become available after the presentence report had been prepared.
The letter indicated that the underlying offenses were the result of a long-term drug addiction
and that Sullivan had accepted responsibility for his actions and addiction, and was willing to
seek treatment. Counsel argued that giving Sullivan concurrent sentences would still give him
considerable prison time but would also give him an opportunity to get treatment sooner
rather than later. In response, the prosecutor addressed Sullivan's quite incredible criminal
history and the serious nature of the charged offenses. The prosecutor further suggested that
if Sullivan were truly serious about rehabilitation, then he could pursue that avenue after his
release from prison regardless of the length of the sentence. The prosecutor concluded: The
only thing he has proven is that his level of violence is most certainly escalating and certainly
putting this community in a great deal of danger. As a result, the consecutive sentences are
appropriate, your Honor. Sullivan did not object to any of the prosecutor's comments.
The prosecutor then informed the court that the victims were present and wished to
address the court. The court swore in the victims, who testified about the impact that the
crimes had on their lives. The prosecutor did not participate in their testimony. At the
conclusion of the victim impact testimony, the prosecutor reiterated that the state requested
the court to follow the Division's recommendation.
The district court followed the Division's recommendation and sentenced Sullivan to
imprisonment for 35 to 156 months for robbery, a consecutive 22 to 96 months for burglary,
and a consecutive 22 to 96 months for possession of stolen property.
2
Sullivan filed this
timely appeal.
__________

2
As discussed herein, there appears to be an error in the judgment of conviction. The judgment states that
appellant pleaded guilty to robbery with the use of a deadly weapon, however, the court did not impose a
sentence enhancement for the use of a deadly weapon and the record indicates that the state agreed not to seek
the enhancement as part of the plea bargain.
DISCUSSION
Breach of the Plea Agreement
[Headnote 1]
The general principles governing the state's obligation to honor the terms of a plea
agreement are well settled. When a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled. Santobello v. United States, 404 U.S. 257,
262 (1971). This court has held the state to the most meticulous standards of both promise
and performance in fulfillment of its part of a plea bargain. Kluttz v. Warden, 99 Nev. 681,
683, 669 P.2d 244, 245 (1983). The violation of either the terms or the spirit of the agreement
requires reversal. Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986).
[Headnote 2]
A plea agreement is construed according to what the defendant reasonably understood
when he or she entered the plea. Statz v. State, 113 Nev. 987, 993, 944 P.2d 813, 817 (1997).
Here, the state agreed to concur in the recommendation of the Division of Parole and
Probation. The initial question is whether Sullivan could have reasonably understood the plea
agreement to preclude the state from advocating in favor of that recommendation by
commenting on the facts and circumstances that supported the recommendation.
[Headnotes 36]
Appellant argues that because the state failed to explicitly reserve the right to present facts
and argument at sentencing, he understood the plea agreement to preclude the state from
commenting on the facts and circumstances supporting the Division's recommendation.
Appellant primarily relies on this court's decision in Statz v. State, 113 Nev. 987, 944 P.2d
813 (1997).
3

__________

3
We note that Sullivan failed to object to the prosecutor's comments. This court previously has approved the
application of the contemporaneous objection rule to an assertion that the state violated the terms of a plea
agreement. Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981); Bishop v. Warden, 94 Nev. 410, 412, 581 P.2d
4, 5 (1978). Under the contemporaneous objection rule, Sullivan's failure to object would preclude appellate
review. See Bishop, 94 Nev. at 412, 581 P.2d at 5. However, this court may address plain error or issues of
constitutional dimension sua sponte. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991); McCullough
v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1982). Because Sullivan's allegation that the state breached the
plea agreement implicates due process, see Van Buskirk, 102 Nev. at 243, 720 P.2d at 1216, we conclude that
appellate review is warranted regardless of Sullivan's failure to object. Cf. Franklin v. State, 110 Nev. 750, 877
P.2d 1058 (1994) (stating that claim that state breached plea agreement must be
[Headnotes 79]
In Statz, we stated that [i]f the government agrees only to refrain from recommending a
specific sentence and intends to retain the right to present facts and argument pertaining to
sentencing, such a limited commitment should be made explicit. 113 Nev. at 993, 944 P.2d
at 817 (citing United States v. Casamento, 887 F.2d 1141, 1181 (2d Cir. 1989); United States
v. Diamond, 706 F.2d 105, 106 (2d Cir. 1983)). This statement, however, must be placed in
context. The requirement that the state explicitly retain the right to present facts and argument
applies where the plea bargain is for the state to stand silent or make no recommendation at
sentencing. See United States v. Corsentino, 685 F.2d 48, 51 (2d Cir. 1982). Where the state
has agreed to stand silent or make no recommendation, the defendant could reasonably
understand the plain language of such an agreement to restrict the state's right to make certain
types of statements to the court that would influence the sentencing decision.
4
See id.; Block,
660 F.2d at 1090-91. If the state has entered such an agreement but nonetheless intends to
present information that might influence the sentence, it must make such an intention explicit
in the plea agreement and reserve the right to present facts and argument pertaining to
sentencing. See Diamond, 706 F.2d at 106 (government promised not to recommend any
specific sentence but reserved right to present court with relevant information at
sentencing). Where the state fails to make such a limited promise clear, it may not attempt[ ]
to influence the sentence by presenting the court with conjecture, opinion, or disparaging
information already in the court's possession."
__________
raised on direct appeal or it is waived), overruled in part on other grounds by Thomas v. State, 115 Nev. 148,
979 P.2d 222 (1999). Although a defendant's failure to object does not necessarily preclude appellate review of
an alleged breach of a plea agreement, as discussed herein such a failure may be considered as evidence of the
defendant's understanding of the terms of a plea agreement.

4
Such an agreement does not completely forfeit the state's right to participate in the presentence investigation
or the sentence hearing. Where the state promises not to make a sentencing recommendation, it may nonetheless
provide presentence information to the Division of Parole and Probation without violating the plea agreement.
See Statz, 113 Nev. at 994, 944 P.2d at 817 (citing United States v. Williamsburg Check Cashing Corp., 905
F.2d 25 (2d Cir. 1990); United States v. Stemm, 847 F.2d 636 (10th Cir. 1988)). Additionally, the state is not
required to stand mute in the face of factual misstatements or withhold relevant information from the court. Id.
Thus, even where the state has agreed to stand silent or make no recommendation, it may nonetheless correct
factual misstatements and provide the court with relevant information that is not in the court's possession. United
States v. Block, 660 F.2d 1086, 1091-92 (5th Cir. 1981). This is a duty owed to the court separate and apart
from the plea negotiations. Id.
already in the court's possession. Block, 660 F.2d at 1091, quoted in Statz, 113 Nev. at
994-93, 944 P.2d at 817.
[Headnotes 1012]
However, a promise to recommend a sentence is not a promise to stand silent. Where the
state agrees to make a particular recommendation, the agreement, unlike an agreement to
stand silent or make no recommendation, does not by its terms restrict the state's right to
argue or present facts in favor of the sentence recommendation. Under such circumstances,
the plea agreement cannot reasonably be understood to preclude the state from presenting
facts or argument in favor of the recommended sentence.
5
Thus, the state is not required to
explicitly reserve the right to argue in favor of a recommended sentence where it has
promised to recommend a certain sentence.
6

[Headnote 13]
Nonetheless, the state must be careful that in exercising this right it does not explicitly or
implicitly undercut the sentencing recommendation by attempting to persuade the sentencing
court to impose a harsher sentence than that which it agreed to recommend. Santobello
prohibits not only explicit repudiation of the government's assurances, but must in the
interests of fairness be read to forbid end-runs around them.' United States v. Canada, 960
F.2d 263, 269 (1st Cir. 1992) (quoting United States v. Voccola, 600 F. Supp. 1534, 1537
(D.R.I. 1985)). A prosecutor's overall conduct must be reasonably consistent with the
recommendation. Id. Thus, in arguing in favor of a sentencing recommendation that the state
has agreed to make, the prosecutor must refrain from either explicitly or implicitly
repudiating the agreement. Our decision in Kluttz v. Warden, 99 Nev. 681, 669 P.2d 244
(1983) illustrates this proscription.
In Kluttz, the prosecutor agreed to recommend a sentence of no more than two years. 99
Nev. at 682, 669 P.2d at 244. However, at sentencing, the prosecutor explained that he was
unaware of the defendant's prior record at the time he negotiated the plea agreement and then
addressed that record. Id. at 682-83, 669 P.2d at 244-45. This court recognized that the
prosecutor did not expressly violate the plea agreement because he asked for a twoyear
sentence.
__________

5
Although we now hold that a promise to recommend a sentence does not preclude the state from arguing in
favor of its recommendation, nothing in this opinion should be taken to impose on a prosecutor an implied duty
to affirmatively or enthusiastically advocate the terms of a plea bargain. See United States v. Benchimol, 471
U.S. 453, 455-56 (1985).

6
To the extent that our decision in Statz could be interpreted to the contrary, it is hereby overruled.
year sentence. Id. at 684, 669 P.2d at 245. Nonetheless, this court concluded:
[I]n advising the sentencing judge that the state had entered into the plea bargain
without knowledge of all of the salient facts, the prosecutor implicitly was seeking a
sentence in excess of two years. The vice in the state's conduct was not that it
mentioned [the defendant's] prior criminal record, but its insinuation that the plea
bargain should not be honored.
Id. (citation omitted). Accordingly, this court concluded that the prosecutor's comments
violated the spirit of the plea agreement. Id. at 684, 669 P.2d at 246; see also Wolf v. State,
106 Nev. 426, 794 P.2d 721 (1990) (concluding that prosecutor breached spirit of agreement
to argue for sentence of no more than five years by implicitly arguing for presentence report's
recommendation of nine years).
In this case, the state did not agree to stand silent or refrain from making a
recommendation. Rather, the state agreed to make a specific recommendationit agreed to
concur in the recommendation of the Division of Parole and Probation. We therefore
conclude that Sullivan could not have reasonably understood the agreement to restrict the
state's right to argue in favor of the sentence recommendation.
7

[Headnote 14]
Moreover, we conclude that the prosecutor did not breach the plea agreement. The
prosecutor complied with the plea agreement by concurring in the recommendation of the
Division of Parole and Probation. The prosecutor's specific comments about Sullivan's
criminal record and the circumstances of the instant offenses were clearly intended to support
the sentencing recommendation that the state agreed to make. Nothing in the prosecutor's
comments implicitly or explicitly sought a harsher sentence than the state agreed to
recommend. Thus, the comments did not undercut the sentence recommendation. We
therefore conclude that the prosecutor did not breach the terms or the spirit of the plea
agreement.
The Robbery Conviction
Our review of the record in this case revealed a possible error in the judgment of
conviction with respect to the conviction for robbery with the use of a deadly weapon. Both
the plea agreement and the judgment of conviction indicate that Sullivan pleaded guilty to
robbery with the use of a deadly weapon.
__________

7
Although not dispositive, Sullivan's failure to object to the prosecutor's comments as a breach of the plea
agreement evidences Sullivan's understanding that the agreement did not preclude those comments.
and the judgment of conviction indicate that Sullivan pleaded guilty to robbery with the use
of a deadly weapon. However, in the plea agreement, Sullivan was informed of the sentence
range for robbery, but not of the sentence enhancement for the use of a deadly weapon.
Moreover, at the arraignment, the district court was informed that the state had agreed not to
pursue the deadly weapon enhancement pursuant to the plea negotiations. The district court
did not impose a sentence for the deadly weapon enhancement. Under the circumstances, it
would appear that Sullivan pleaded guilty to robbery, not robbery with the use of a deadly
weapon. Therefore, the judgment of conviction erroneously adjudicates Sullivan guilty of
robbery with the use of a deadly weapon.
CONCLUSION
We conclude that the plea agreement in this case did not preclude the state from arguing in
favor of the sentence recommendation. We further conclude that the prosecutor's comments at
sentencing did not breach the spirit or the terms of the plea agreement. However, we conclude
that the judgment of conviction erroneously states that Sullivan pleaded guilty to robbery with
the use of a deadly weapon. Accordingly, we remand this case to the district court for the sole
purpose of correcting the judgment of conviction consistent with this opinion.
____________
115 Nev. 391, 391 (1999) Greene v. Dist. Ct.
STAN GREENE, Individually, RONNIE L. FORD, Individually, and KATHLEEN FORD,
Individually, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE GENE T. PORTER, District Judge, Respondents, and DWAINE
ANDERSON, Real Party in Interest.
No. 32005
December 13, 1999 990 P.2d 184
Original petition for writ of prohibition challenging an order of the district court
permitting amendment of complaint after final judgment.
Civil action was brought. Following entry of final judgment against defendant and others,
the district court granted plaintiff's motion for leave to amend his complaint to set aside
defendant's fraudulent conveyances and for an order forbidding any transfer or other
disposition of assets. Defendant and third parties who were named in amended complaint
filed petition for writ of prohibition.
were named in amended complaint filed petition for writ of prohibition. The supreme court
held that the district court exceeded its jurisdiction in permitting plaintiff to amend complaint
more than a year after final judgment.
Petition granted.
George R. Carter, Las Vegas, for Petitioners.
Netzorg & Caschette, Las Vegas, for Real Party in Interest.
1. Prohibition.
The supreme court may issue a writ of prohibition to arrest the proceedings of a district court exercising
its judicial functions when such proceedings are in excess of the jurisdiction of the district court. NRS 34.320.
2. Prohibition.
A petition for a writ of prohibition is addressed to the sound discretion of the supreme court.
3. Prohibition.
A writ of prohibition may issue only when there is no plain, speedy and adequate remedy at law. NRS 34.330.
4. Pleading; Prohibition.
District court exceeded its jurisdiction when it permitted plaintiff to amend his complaint more than a year after final judgment, so
as to ask court to set aside defendant's fraudulent conveyances and to issue order forbidding any transfer or other disposition of assets,
and therefore, writ of prohibition would issue directing district court to refrain from acting on the amended complaint. Plaintiff had
other recourse under state law in his effort to protect and recover on the judgment. NRS 34.320, 34.330.
5. Courts.
Federal court interpretations of federal rules of civil procedure, as counterparts to the state's rules of civil procedure, are persuasive
but not controlling authority.
6. Judgment.
Once a judgment is final, it should not be reopened except in conformity with the state's rules of civil
procedure.
7. Pleading.
A district court lacks jurisdiction to allow amendment of a complaint, once final judgment is entered, unless that judgment is first
set aside or vacated pursuant to the state's rules of civil procedure. NRCP 59(e), 60(b).
OPINION
Per Curiam:
This is a petition for a writ of prohibition challenging an order of the district court
permitting amendment of a complaint after final judgment.
final judgment. On January 10, 1997, judgment was entered against defendant/petitioner Stan
Greene and two others, and in favor of plaintiff/real party in interest Dwaine Anderson.
Greene later filed for bankruptcy, but his petition was dismissed. On January 30, 1998,
Anderson filed a motion pursuant to NRS 21.330 for leave to amend his complaint to set
aside fraudulent conveyances and for an order forbidding any transfer or other disposition of
assets. Anderson alleged that Greene had transferred assets to other entities with the
assistance of petitioners Ronnie L. Ford and Kathleen Ford. Greene and the Fords opposed
the motion. On March 2, 1998, the district court, after argument, granted the motion. An
amended complaint naming all of the petitioners was filed the same day. On March 5, 1998, a
written order granting the motion was filed.
On March 23, 1998, petitioners filed their petition for a writ of prohibition in this court,
with an emergency motion for a stay. On the same day, we granted the motion for a stay and
ordered an answer. On April 2, 1998, Anderson filed his answer.
[Headnotes 13]
This court may issue a writ of prohibition to arrest the proceedings of a district court
exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the
district court. NRS 34.320. A petition for a writ of prohibition is addressed to the sound
discretion of this court. Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
Further, such a writ may issue only when there is no plain, speedy, and adequate remedy at
law. NRS 34.330.
[Headnotes 4, 5]
Petitioners argue that the district court exceeded its jurisdiction in permitting Anderson to
amend his complaint more than a year after final judgment. Federal court interpretations of
Federal Rules of Civil Procedure, as counterparts to the Nevada Rules of Civil Procedure, are
persuasive but not controlling authority. See, e.g., Bowyer v. Taack, 107 Nev. 625, 817 P.2d
1176 (1991). Federal courts, construing the analogous federal rules, have held that a trial
court cannot allow amendment of the complaint unless the final judgment is first set aside or
vacated under Rule 59(e) or 60(b). See, e.g., Paganis v. Blonstein, 3 F.3d 1067, 1072-73 (7th
Cir. 1993) (once final judgment was entered, the district court lacked jurisdiction over motion
to amend without a Rule 59(e) or Rule 60(b) motion); see also 6 Charles Alan Wright et al.,
Federal Practice and Procedure 1489 (2d ed. 1990) (hereinafter Wright); 3 James Wm.
Moore et al., Moore's Federal Practice 15.12[2] (3d ed. 1998). This approach appears
sound. To hold otherwise would enable the liberal amendment policy of Rule 15{a) to be
employed in a way that is contrary to the philosophy favoring finality of judgments and
the expeditious termination of litigation."
policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring
finality of judgments and the expeditious termination of litigation. Wright, supra, at 694.
We also note that it has long been the law in Nevada that, in the garnishment or attachment
context, the judgment creditor must file a separate action against a third party in possession of
property of the judgment debtor, unless the possessor acquiesces to the judgment creditor's
claim. See Persing v. Reno B. Co., 30 Nev. 342 (1908); Hagerman v. Tong Lee, 12 Nev. 331
(1877).
1

Here, too much time has passed for Anderson to seek to set aside or vacate the judgment.
See NRCP 59(e) (ten-day limit); NRCP 60(b) (within a reasonable time, not to exceed six
months in certain instances, unless there was a fraud upon the court).
2
Petitioners therefore
insist that the district court was without jurisdiction to grant the motion to amend, and that
Anderson must initiate a new proceeding before he can plead new claims and/or add new
parties.
[Headnote 6]
Anderson urges that the district court has inherent power to protect its judgments by
setting aside fraudulent conveyances by a judgment debtor, and that this inherent power also
allows the district court to grant leave to amend a complaint and pursue fraudulent
conveyance claims in a post-judgment supplementary proceeding.
__________

1
In addition, the case before us is different from McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d 957
(1957). In McCleary, a corporation against which a judgment had been obtained had transferred its assets to a
second corporation, an alter ego. The district court held that the second corporation was identical to the first, and
that its assets were available to satisfy the judgment. Defendant appealed, arguing that the plaintiff had to bring a
new action. This court held that a separate action against the second corporation was unnecessary, because
[r]espondents are not seeking to reach assets in the hands of a third party [or] to substitute or add a new party to
the old action. Id. at 282, 317 P.2d at 959; see also Levinson v. District Court, 109 Nev. 747, 857 P.2d 18
(1993) (the district court contemplated permitting plaintiff to amend the complaint post-judgment to add certain
individuals as alter egos of the judgment debtor business, pending discovery of further evidence that the
individuals were alter egos; dissatisfied with that ruling, the plaintiff filed a new action instead). Here, however,
Anderson seeks to reach assets in the hands of a third party, apparently, rather than an alter ego, and McCleary
therefore would not apply.

2
Anderson, having won a final judgment in his favor, may not have even had a basis to alter, amend, or set
aside the judgment in this instance. The purposes of NRCP 59(e) and NRCP 60(b) are to attack a judgment or
correct a mistaken judgment. See NRCP 60(b) (listing, for example, mistake, inadvertence, excusable neglect,
and fraud, as grounds for relief from judgment); Chiara v. Belaustegui, 86 Nev. 856, 477 P.2d 857 (1970) (Rule
59(e) provides an opportunity to seek correction of an erroneous order or judgment).
proceeding. See Thomas, Head and Greisen Employees Trust v. Buster, 95 F.3d 1449,
1452-53 (9th Cir. 1996) (Alaska law). We conclude, however, that petitioners' arguments are
more sound. Once a judgment is final, it should not be reopened except in conformity with
the Nevada Rules of Civil Procedure. The approach Anderson advocates must necessarily
encompass multiple final judgments within a single action, a concept inconsistent with the
normal meaning of the term final judgment, which is [o]ne which puts an end to an action
at law. Black's Law Dictionary 843 (6th ed. 1990). Undermining the finality of judgments
would have serious repercussions for appellate jurisdiction. Our rules of appellate procedure
rely on the existence of a final judgment as an unequivocal substantive basis for our
jurisdiction, and measure important jurisdictional deadlines from the notice of entry of final
judgment. See NRAP 3A(b)(1); NRAP 4(a). Permitting such amendments would create
procedural and jurisdictional difficulties.
Judgment creditors such as Anderson are not without recourse, however, in their efforts to
protect and recover on a judgment. Nevada law provides for proceedings supplementary to
execution. See NRS 21.270 to 21.340. After the issuance or return of an execution against
property of a judgment debtor, a judge may (under circumstances set forth in the statute)
order a third party in possession of property of the judgment debtor to appear before the judge
or a master to submit to examination regarding such property. See NRS 21.300. Witnesses
may be required to appear and testify before the judge or master . . . in the same manner as
upon the trial of an issue. NRS 21.310. The judge may order any property of the judgment
debtor to be applied toward satisfaction of the judgment, whether it is in the possession of the
judgment debtor or a third party, as long as it is not exempt from execution. NRS 21.320. If,
however, pursuant to the examination, the third party claims an adverse interest in the
property, the court cannot order that the property be applied toward the judgment. Hagerman,
12 Nev. at 336. Instead, NRS 21.330 permits a judgment creditor to institute an action against
the third parties with adverse claims to the property of a judgment debtor.
3
Under its
provisions, a judgment creditor can not only bring a new action to recover on the debt
after the judgment debtor's assets have been transferred, but request the district court to
forbid "a transfer or other disposition of such interest or debt until an action can be
commenced and prosecuted to judgment."
__________

3
NRS 21.330 provides in part:
If it appears that a person or corporation alleged to have property of the judgment debtor, or indebted to
him, claims an interest in the property adverse to him, or denies the debt, the court or judge may
authorize, by an order made to that effect, the judgment creditor to institute an action against such person
or corporation for the recovery of such interest or debt; and the court or judge may, by order, forbid a
transfer or other disposition of such interest or debt until an action can be commenced and prosecuted to
judgment.
provisions, a judgment creditor can not only bring a new action to recover on the debt after
the judgment debtor's assets have been transferred, but request the district court to forbid a
transfer or other disposition of such interest or debt until an action can be commenced and
prosecuted to judgment. NRS 21.330. A judgment creditor can also conduct the ordinary
methods of discovery in pursuit of a judgment claim. In aid of the judgment or execution,
the judgment creditor or his successor in interest when that interest appears of record, may
obtain discovery from any person, including the judgment debtor, in the manner provided in
these rules. NRCP 69.
[Headnote 7]
We conclude that a district court lacks jurisdiction to allow amendment of a complaint,
once final judgment is entered, unless that judgment is first set aside or vacated pursuant to
the Nevada Rules of Civil Procedure. We therefore grant the petition, and direct the clerk of
this court to issue a writ of prohibition directing the district court to refrain from acting on the
amended complaint.
4

___________
115 Nev. 396, 396 (1999) McNelton v. State
CHARLES D. McNELTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32448
December 13, 1999 990 P.2d 1263
Appeal from an order of the district court denying a post-conviction petition for a writ of
habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Donald
M. Mosley, Judge.
Following affirmance of conviction of first-degree murder with use of deadly weapon and
death sentence by the supreme court, McNelton v. State, 111 Nev. 900, 900 P.2d 934 (1995),
defendant filed post-conviction petition for writ of habeas corpus claiming ineffective
assistance of counsel. The district court denied petition, and defendant appealed. The supreme
court held that: (1) Petrocelli hearing should have been held prior to officer's testimony about
prior bad acts of defendant, (2) erroneous admission of prior bad acts evidence did not result
in reversible error, (3) prosecutor's improper elicitation of evidence from alibi witnesses
about defendant's incarceration did not result in reversible error, (4) prosecutor improperly
shifted burden to defendant during closing by questioning why defendant had not called
witness,
__________

4
In light of this opinion, we vacate our order granting a stay entered on March 23, 1998.
closing by questioning why defendant had not called witness, (5) improper conduct did not
result in reversible error, and (6) defense counsel's failure to call defendant's mother as
defense witness over defendant's objection was not ineffective assistance.
Affirmed.
[Rehearing denied March 1, 2000]
JoNell Thomas, Las Vegas, for Appellant.
and Christopher J. Laurent, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme court will defer to district court's factual findings concerning claims of ineffective assistance of
counsel. U.S. Const. amend. 6.
2. Criminal Law.
Claims of ineffective assistance of counsel are subject to supreme court's independent review because they present mixed question
of law and fact. U.S. Const. amend. 6.
3. Criminal Law.
A court may consider the two prongs of Strickland test for ineffective assistance of counsel in any order and need not consider
both if the defendant makes an insufficient showing on either one. U.S. Const. amend. 6.
4. Criminal Law.
Prior to admitting evidence of a prior bad act, the district court is required to conduct a Petrocelli hearing on the record outside the
presence of the jury and determine that: (1) the incident is relevant to the crime charged, (2) the act is proven by clear and convincing
evidence, and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. NRS
48.045(2).
5. Criminal Law.
Failure to conduct Petrocelli hearing to determine admissibility of prior bad acts evidence before allowing police officer to testify
about police response to shots fired call concerning defendant's residence, which resulted in testimony about defendant's arrest for
gun possession and confiscation of guns not related to murder, was error in capital murder prosecution.
6. Criminal Law.
Reversal is not necessarily based on failure to conduct Petrocelli hearing prior to admitting bad acts evidence if: (1) record is
sufficient to determine that the evidence is admissible, or (2) result would have been the same if trial court had not admitted evidence.
7. Criminal Law.
Error in not conducting Petrocelli hearing and not excluding, as inadmissible prior bad acts evidence, evidence of defendant's
arrest for possession of guns unrelated to charged murder was not reversible where substantial eyewitness evidence was presented that
defendant was shooter and defendant's alibi evidence was not convincing.
8. Criminal Law.
Defendant was not prejudiced by defense counsel's failure to request Petrocelli hearing, and therefore,
defense counsel was not ineffective, even though failure resulted in admission of witness's testimony about
police response to shots fired call at defendant's residence that contained irrelevant prior bad acts evidence,
where evidence of guilt was substantial and alibi testimony unconvincing. U.S. Const. amend. 6.
9. Criminal Law.
Prosecutor acted improperly on cross-examination in eliciting information from alibi witness that defendant was incarcerated.
10. Criminal Law.
Error arising when prosecutor was allowed to elicit information from alibi witness on cross-examination regarding defendant's
pretrial incarceration was harmless, and thus counsel was not constitutionally ineffective in failing to object to prosecutor's line of
questioning, where evidence against defendant was substantial and defendant thus was not prejudiced by error. U.S. Const. amend. 6.
11. Criminal Law.
Decision to have one defense counsel take stand shortly after alibi witness testified that he had not mentioned his last visit with
defendant in jail because defense counsel had advised him not to mention jail visits, was tactical one that did not constitute ineffective
assistance of counsel. U.S. Const. amend. 6.
12. Criminal Law.
Prosecutor improperly shifted burden of proof to defendant during rebuttal closing argument in guilt phase of capital murder trial
by commenting on fact that friend of defendant's family whose testimony would have supported alibi theory did not testify. Argument
went beyond impugning credibility of defendant's wife, who testified to defendant's presence at alleged party at time of murder, as that
point could have been made by questioning why wife did not initially mention party to police without additionally asking why friend
was not called to testify about party.
13. Criminal Law.
Prosecutor's improper conduct in shifting burden of proof to defendant during rebuttal closing argument by asking why friend of
defendant's family did not testify in support of alibi theory did not deprive defendant of fair trial in capital murder prosecution, and
thus failure to object was not ineffective assistance, where jury would have reached same verdict in absence of remark, given
substantial evidence of defendant's guilt. U.S. Const. amend. 8.
14. Criminal Law.
Failing to object to jury instruction concerning statute of limitations for sale of controlled substance was not ineffective assistance
in capital murder prosecution arising from shooting of alleged drug dealer, on theory that instruction may have misled jury into
thinking that prosecution witnesses, who also allegedly dealt drugs, were innocent or did not receive favorable treatment for their
testimony, as jury could not have inferred from instruction that the state refrained from prosecuting those witnesses because they were
not involved in selling drugs. U.S. Const. amend. 6.
15. Criminal Law.
Defense counsel was not ineffective in failing to call defendant's mother as penalty phase witness in capital murder trial after
defendant forbade counsel from doing so.
forbade counsel from doing so. Moreover, decision as to what mitigating evidence to present was tactical
one. U.S. Const. amend. 6.
16. Criminal Law.
Appellate counsel's possibly deficient performance in failing to communicate with defendant to discuss direct appeal was not
ineffective assistance where defendant was not prejudiced, given lack of reasonable probability that appeal would have had different
result had counsel consulted with defendant. U.S. Const. amend. 6.
17. Extradition and Detainers.
Failure to bring the defendant to trial within 180 days after incarcerated defendant makes Article III request under Interstate
Agreement on Detainers to prison authorities for trial on pending charges in another state may result in dismissal of the charges with
prejudice. NRS 178.620, Art. V(c).
18. Extradition and Detainers.
Time period for bringing defendant to trial under Interstate Agreement on Detainers did not begin to run until defendant's request
to California prison authorities for trial on pending Nevada murder detainer was actually delivered to the court and prosecuting officer
of the jurisdiction in Nevada that lodged detainer against him, and thus trial was timely, even though it did not occur within 180 days
of defendant's request. NRS 178.620, Art. V(c).
19. Criminal Law.
In ruling on defendant's motion to dismiss for failure to bring him to trial promptly on detainer, trial court was not bound by its
initial determination that statements in affidavit of extradition coordinator were hearsay, and thus court could consider, on remand
from appellate court, coordinator's statement that prosecutor's office did not receive request for final disposition of murder charge
against defendant.
20. Courts.
Determination on direct appeal that prosecutor's comment on defendant's lack of remorse did not violate Fifth Amendment
privilege against self-incrimination was law of the case, and could not be avoided by more detailed and precisely focused argument on
petition for post-conviction writ of habeas corpus. U.S. Const. amend. 5.
21. Habeas Corpus.
Claims of ineffective assistance of counsel that were raised for first time on appeal from district court's denial of post-conviction
petition for habeas corpus were barred absent showing of good cause and prejudice for failing to include issues in initial petition. U.S.
Const. amend. 6.
OPINION
Per Curiam:
On May 13, 1989, appellant Charles McNelton approached Monica Glass in Las Vegas and shot her in the head, killing her. McNelton
v. State, 111 Nev. 900, 902, 900 P.2d 934, 935 (1995), cert. denied, 517 U.S. 1212 (1996). McNelton was subsequently charged with
Glass's murder and the state sought the death penalty.
charged with Glass's murder and the state sought the death penalty. McNelton presented an
alibi defense, arguing that he was in Los Angeles at the time of the shooting. The jury
returned a guilty verdict of one count of first-degree murder with the use of a deadly weapon
and imposed the death penalty. On direct appeal, McNelton raised arguments pertaining to the
guilt and penalty phases of his trial. This court rejected all of McNelton's contentions. Id. at
902-08, 900 P.2d at 935-39. McNelton subsequently filed a post-conviction petition for a writ
of habeas corpus in the district court claiming ineffective assistance of trial and appellate
counsel. After a hearing, the district court denied the petition. This appeal followed. We
affirm.
FACTS
McNelton lived with Brian Jackson, his cousin, at 1237 Hart Street in Las Vegas, near
Gerson Park. Andre Lee and his family lived several houses down the street. Lee, Jackson,
and Glass, the sixteen-year-old victim, all sold crack cocaine on Hart Street. At some point in
1989, a dispute arose among those three because Lee's brother-in-law Leroy Wilson was
helping Jackson sell cocaine at night. Wilson normally sold for Glass. Jackson apparently
wanted Wilson to sell for him full-time, but Wilson was loyal to Glass and had refused.
In the afternoon on May 13, 1989, Lee was selling crack cocaine on the street in front of
his house. Lee's wife Linda and two other women were also outside the house. Jackson rode
up to Lee on a bicycle and told Lee to stop selling. Lee testified that Jackson didn't want
anybody to sell anything if they wasn't selling it for him. Lee ignored Jackson, who cycled
home. Approximately five minutes later, Jackson returned with a gun. When a customer
drove up, Jackson put the gun, a .25 caliber automatic, to Lee's temple and told him not to go
to the customer. Lee did anyway. Jackson appeared upset by this and cycled back toward his
house.
Approximately five to ten minutes later, McNelton approached Lee from the direction
Jackson had gone. McNelton asked Lee if Lee was messing with his cousin, meaning
Jackson. Glass then came out of Lee's house and walked to the end of the sidewalk, where
everyone was assembled. McNelton asked her the same question. Glass said, Chuck, get
outta my face with that shit. McNelton responded, I'm gonna show you what I do to people
who mess with my family. McNelton then grabbed the back of Glass's head with his left
hand, placed a gun to her forehead with his right, and fired once, killing her.
On June 16, 1989, an indictment was filed charging McNelton with one count each of
murder and manslaughter with the use of a deadly weapon. The manslaughter count, which
was based on the fact that Glass was pregnant at the time of the shooting, was subsequently
dismissed. McNelton was located in California, where he was serving an unrelated prison
sentence, and was not extradited to Nevada until December 1991. On June 1, 1992, McNelton
filed a motion to dismiss the indictment on the ground that the State of Nevada failed to bring
him to trial within 180 days as required by the Interstate Agreement on Detainers. The district
court first granted McNelton's motion, then on rehearing denied it and set the matter for trial.
On March 4, 1992, the state filed a notice of intent to seek the death penalty. The state
alleged five aggravating circumstances: (1) McNelton was convicted of robbery in California
in 1980; (2) McNelton was convicted of assault with the use of a deadly weapon with great
bodily injury in California in 1984; (3) McNelton was convicted of attempted robbery in
California in 1984; and (4) McNelton was under sentence of imprisonment for the 1984
attempted robbery at the time he committed the instant crime; and (5) McNelton was under
sentence of imprisonment for the 1984 assault at the time he committed the instant crime.
Also on March 4, 1992, McNelton filed a notice of alibi, claiming that his wife Wanda would
testify that he was in Los Angeles at the time of the shooting. On September 17, 1993,
McNelton filed another notice of alibi listing the following additional witnesses: Elmore
Hearon, Randolph Lee, Michael Turner, and Judy Lacy. All of those witnesses, with the
exception of Lacy, testified in support of McNelton's alibi.
Trial took place October 5-7, 1993. The jury returned a verdict of guilty of one count of
first-degree murder with the use of a deadly weapon. The penalty phase was held October
11-13, 1993. The jury found two aggravators: (1) the murder was committed by a person who
was previously convicted of a felony involving the use or threat of violence; and (2) the
murder was committed by a person under sentence of imprisonment. The jury concluded that
any mitigating circumstances did not outweigh the aggravating circumstances and returned a
verdict of death. On October 21, 1993, the district court entered a judgment of conviction
pursuant to the verdicts.
On direct appeal, McNelton raised two arguments pertaining to the guilt phase of the trial:
(1) the prosecutor failed to provide gender-neutral grounds for the exercise of peremptory
challenges when six men and three women were challenged; and (2) the district court failed
to prevent him from presenting an alibi defense {which he claimed on appeal was an
unwise tactical decision which destroyed his credibility).
trict court failed to prevent him from presenting an alibi defense (which he claimed on appeal
was an unwise tactical decision which destroyed his credibility). Without discussing these
claims, this court concluded that they lacked merit. McNelton, 111 Nev. at 902, 900 P.2d at
935.
With respect to the penalty phase, McNelton argued on direct appeal that: (1) the
prosecutor committed misconduct in rebuttal closing argument by commenting on his failure
to express remorse in his allocution statement; (2) the district court erred in failing to advise
him that if he testified in the penalty phase the prosecutor's cross-examination would be
limited to the scope of the mitigation testimony; (3) the district court erred in admitting
evidence that Glass was pregnant; and (4) the jury improperly found the aggravator that the
murder was committed by a person who was previously convicted of a felony (because his
prior felony convictions were legally infirm), and that he was under sentence of imprisonment
(because he was on parole). This court discussed each of these contentions and rejected all of
them. Id. at 903-908, 900 P.2d at 936-39.
On August 6, 1996, McNelton filed a proper person post-conviction petition for a writ of
habeas corpus claiming ineffective assistance of trial and appellate counsel. Counsel was
subsequently appointed for McNelton. On September 22, 1997, appointed counsel filed an
amended petition claiming: (1) appellate counsel was ineffective for failing to argue that (a)
the district court erred in admitting a prior bad act, namely allowing a Las Vegas
Metropolitan Police Department (LVMPD) officer to testify to extraneous events which
occurred on February 24, 1989, and with regard to items discovered during a search of
McNelton's house; (b) the prosecutor improperly mentioned in closing argument McNelton's
silence; (c) the prosecutor shifted the burden of proof; (d) the jury should not have been
instructed on the statute of limitations for sale of a controlled substance; (2) trial counsel was
ineffective for failing to call McNelton's mother in the penalty phase; and (3) the prosecutor
committed misconduct in commenting in closing argument on McNelton's lack of remorse.
In a second amended petition filed October 13, 1997, counsel raised the same issues plus a
new one: (1)(e) appellate counsel was ineffective for failing to argue that the district court
abused its discretion in denying McNelton's motion to dismiss. The state opposed the
petition.
On April 3 and 17, 1998, the district court held an evidentiary hearing and heard argument
on McNelton's petition. On May 18, 1998, the district court entered an order denying the
petition. McNelton timely appealed.
DISCUSSION
I. Trial and appellate counsel provided McNelton with effective assistance of counsel
[Headnotes 1, 2]
Generally, this court will defer to the district court's factual findings concerning claims of
ineffective assistance of counsel. Hill v. State, 114 Nev. 169, 175, 953 P.2d 1077, 1082, cert.
denied, 525 U.S. 1042 (1998). However, because these types of claims present a mixed
question of law and fact, they are still subject to this court's independent review. Kirksey v.
State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996) (citing State v. Love, 109 Nev. 1136,
1138, 865 P.2d 322, 323 (1993)).
[Headnote 3]
This court reviews claims of ineffective assistance of counsel under the reasonably
effective assistance standard set out in Strickland v. Washington, 466 U.S. 668 (1984).
Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Under Strickland, a defendant
challenging the adequacy of his counsel's representation must show: (1) counsel's
performance was deficient, i.e., counsel's representation fell below an objective standard of
reasonableness, and (2) the deficient performance prejudiced the defendant, i.e., there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 687-89, 694; see Dawson v.
State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992). A court may consider the two prongs in
any order and need not consider both if the defendant makes an insufficient showing on either
one. Strickland, 466 U.S. at 697.
A. Claims concerning trial counsel
1. Failure to request a Petrocelli hearing
McNelton argues that trial counsel were ineffective for failing to request a hearing
pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), and failing to seek to
exclude evidence concerning his arrest for possession of firearms.
In his opening statement, the prosecutor said that during a search of McNelton's house,
McNelton told LVMPD Officer Raymond Berni that he had a gun in the house and Berni
impounded the gun. The prosecutor also said that Berni took a picture of McNelton. The
defense did not object to these statements.
Berni subsequently testified that on February 24, 1989, he was dispatched to 1237 Hart
Street, the house McNelton was living in, because shots were fired from the residence.
in, because shots were fired from the residence. McNelton and another man gave Berni
permission to search the house, and Berni found a shotgun and a pistol on the master
bedroom floor. Berni identified a photograph of McNelton taken the day of the search as a
Clark County Detention Center (CCDC) photograph; this testimony was stricken. However,
the photograph, which had a piece of tape covering part of it indicating that it was taken at the
CCDC, was apparently admitted into evidence. The trial judge then asked Berni what date the
photograph was taken. Berni replied, The date of the arrest. This testimony was not
stricken.
After the next witness testified and outside the presence of the jury, defense counsel
moved for a mistrial on the ground that it was highly prejudicial for the jury to learn that
McNelton was possibly arrested in February. The prosecutor stated that he had not wanted
any information to come out about an arrest or the CCDC. In the argument on the motion, it
came out that the judge had erroneously believed that one of the weapons that Berni found
during the search was similar to the murder weapon. Despite this misunderstanding, the judge
denied the motion. The judge agreed to admonish the jury with respect to Berni's testimony if
the defense so requested, but the defense chose not to. The defense subsequently renewed the
motion for a mistrial. The judge again denied the motion, concluding that McNelton had not
suffered any prejudice.
At the evidentiary hearing on the petition, the district court determined that a Petrocelli
hearing should have been held. The court concluded that the trial judge should not have
allowed evidence of the police response to the shots fired complaint because the guns
involved had nothing to do with the gun used in the killing and that the trial judge
misunderstood this. The court also concluded that although the photograph was relevant
because it was included in a photographic lineup used to identify McNelton, testimony that
the photograph was taken at the CCDC was properly stricken. The court further concluded
that testimony that the photograph was taken the date McNelton was arrested should have
been excluded, but that any prejudice resulting from this was slight considering the
overwhelming evidence against him. Overall, the court concluded that the outcome of the
trial would not have been affected even if the improper evidence had been excluded.
McNelton argues that had trial counsel insisted on a Petrocelli hearing prior to the
introduction of Berni's testimony, the judge would have known that neither of the guns found
at the house was the murder weapon and the jury would not have learned that McNelton was
arrested for possessing guns. McNelton argues that admission of the evidence was not
harmless because it damaged his credibility and led the jury to disbelieve his alibi
defense.
admission of the evidence was not harmless because it damaged his credibility and led the
jury to disbelieve his alibi defense.
[Headnotes 4, 5]
We conclude that a Petrocelli hearing should have been held and evidence of the police
response excluded. Prior to admitting evidence of a prior bad act pursuant to NRS 48.045(2),
the district court is required to conduct a hearing on the record outside the presence of the
jury and determine that: (1) the incident is relevant to the crime charged; (2) the act is proven
by clear and convincing evidence; and (3) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.
1
Tinch v. State, 113 Nev. 1170,
1176, 946 P.2d 1061, 1064-65 (1997); Petrocelli, 101 Nev. at 51-52, 692 P.2d at 507-08; see
NRS 48.035(1). The CCDC photograph is relevant because it was used as part of a
photographic lineup for witnesses. However, evidence that McNelton was arrested the day
Berni searched the house and that guns were found in the house is not relevant and therefore
not admissible pursuant to NRS 48.045(2).
[Headnotes 6, 7]
The district court's failure to hold a Petrocelli hearing does not necessarily require reversal
of the conviction. Reversal is not necessary if: (1) the record is sufficient to determine that the
evidence is admissible under Tinch; or (2) the result would have been the same if the trial
court had not admitted the evidence. Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765,
767 (1998). As discussed above, the evidence is not admissible under Tinch. Thus, we view
Berni's testimony about the police response in light of all the evidence presented at trial to
determine if the result would have been the same if the trial court had not admitted the
evidence. Substantial evidence was presented against McNelton, namely the testimony of
three witnesses, Andre and Linda Lee and Leroy Wilson, who witnessed McNelton shoot
Glass.
The evidence in support of McNelton's alibi defense was not as convincing. Randolph Lee,
for whom McNelton worked from April through June 1989 in California as a laborer, testified
that McNelton never missed work and never took time off to go to Las Vegas. However, Lee
did not know if McNelton worked on May 13, 1989 (the day of the shooting), and did not
keep any records. Further, Lee's testimony that McNelton never missed work to go to Las
Vegas was undermined by the subsequent defense stipulation that McNelton was in Las
Vegas on Monday, April 10, 19S9, through Wednesday, April 12, 19S9.
__________

1
NRS 48.045(2) provides in full:
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.
to Las Vegas was undermined by the subsequent defense stipulation that McNelton was in
Las Vegas on Monday, April 10, 1989, through Wednesday, April 12, 1989. Another of
McNelton's former employers, Elmore Hearon, testified that McNelton worked for him in
California for one year cleaning carpets beginning in February 1989. Hearon had time cards
that he had initialed which showed that McNelton worked for him on May 13, 1989, from
5:00 to 9:30 p.m. However, the prosecutor called the validity of the time cards into question,
arguing in rebuttal closing argument that the time cards were all initialed in the same ink even
though Hearon claimed to have initialed them each day when the employees left work.
McNelton's wife Wanda testified that on the day of the shooting, McNelton dropped
her off at her friend Judy Lacy's house in Los Angeles. She and Lacy later went to a party
where she met up with McNelton. At the end of the evening, McNelton dropped her off at
Lacy's house, and he spent the night at a friend's house. The following morning, McNelton
and Wanda returned to their house in Lancaster, California. Wanda's testimony was called
into question during the state's rebuttal case. Richard Crotsley, a homicide detective for the
Los Angeles Police Department (LAPD), testified that when he interviewed Wanda in
September of 1993, she said that she did not remember what happened on May 13, 1989,
because of an old head injury. She also said that her memory was not good. Wanda never
mentioned the party to Crotsley. Lacy did not testify.
[Headnote 8]
We conclude that the result of the trial would have been the same if the court had not
admitted Berni's testimony about the police response to the shots fired call. Accordingly,
the district court's failure to hold a Petrocelli hearing where one was warranted does not
mandate reversal of McNelton's conviction. Thus, McNelton was not prejudiced by his
counsel's failure to request a Petrocelli hearing, and therefore counsel were not ineffective.
2. Failure to object to the prosecutor's comments on and defense counsel's testimony
about McNelton's in-custody status
McNelton argues that his trial counsel were ineffective for failing to prevent the prosecutor
from eliciting testimony from Michael Turner, McNelton's cousin, that McNelton was in
custody prior to trial. Turner testified as an alibi witness. McNelton also argues that his trial
counsel were ineffective because one of them testified with respect to this issue.
During cross-examination, Turner mentioned that McNelton was in custody. The
prosecutor asked Turner, Did you ever talk to [Wanda McNelton] about [McNelton] being
arrested for murder?"
to [Wanda McNelton] about [McNelton] being arrested for murder? Turner replied, I found
out through my family that my cousin was like incarcerated. Later in cross-examination, the
prosecutor asked Turner about finding out that McNelton was incarcerated. On
recross-examination, the prosecutor asked Turner about visiting McNelton in 1992 in Las
Vegas, You mean to tell me that [McNelton] didn't ask you to testify in this matter way back
in 1992? Turner replied, No, we didn't even talk about why he was in jail. The prosecutor
then asked whether Turner knew why McNelton was in jail and whether anyone told Turner
not to tell the jury that he had visited McNelton in jail.
[Headnotes 9, 10]
Mentioning that McNelton was incarcerated and eliciting that information from Turner
was improper. We have previously stated that [i]nforming the jury that a defendant is in jail
raises an inference of guilt, and could have the same prejudicial effect as bringing a shackled
defendant into the courtroom. Haywood v. State, 107 Nev. 285, 288, 809 P.2d 1272, 1273
(1991). In Haywood, the prosecutor referred to the fact that the defendant had been in custody
between the time of his arrest and trial; the prosecutor cross-examined the defendant about
jail visits he received from friends and relatives. Id. at 287, 809 P.2d at 1273. We concluded
in Haywood, however, that this error was harmless because five witnesses identified the
defendant and other evidence connected him to the crime. Id. at 288, 809 P.2d at 1273.
Likewise, we conclude that the error in the instant case was harmless because of the
substantial evidence of McNelton's guilt. Counsel therefore were not ineffective on this
ground.
[Headnote 11]
As noted above, McNelton also argues that one of his defense counsel, Drew Christensen,
made matters worse by taking the stand shortly after Turner testified. Turner had testified on
direct examination that the last time he saw McNelton was at the party in 1989. On
cross-examination, however, Turner said that the last time he saw McNelton was when he
visited him in the Las Vegas jail in 1992 and that Christensen told him not to say anything
about that visit. When Christensen testified, he denied telling Turner not to mention visiting
McNelton and said that he told Turner not to mention that McNelton was in jail because he
did not want the jury to know that McNelton was incarcerated.
Christensen could have bolstered Turner's credibility when he explained to the jury that
Turner was not trying to hide anything, but simply thought that he had been instructed not to
mention the jail visit. On the other hand, Christensen could have hurt McNelton if it appeared
to the jury that Christensen was just trying to vindicate himself.
ing to vindicate himself. We do not decide whether counsel's decision to have Christensen
testify was right or wrong, but conclude that the decision was a tactical one and
unchallengeable absent extraordinary circumstances not present here. See Strickland, 466
U.S. at 690-91; Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990). Accordingly,
we conclude that counsel were not ineffective on this ground.
3. Failure to object to the prosecutor's comment in closing argument that McNelton
failed to call a witness
McNelton argues that trial counsel were ineffective in failing to anticipate, prevent, and/or
object to the prosecutor's statement in closing argument that McNelton failed to call Judy
Lacy as an alibi witness. McNelton argues that this comment wrongly shifted the burden of
proof to him.
[Headnote 12]
During rebuttal closing argument, the prosecutor said:
And then she [Wanda McNelton] comes into court during the course of this trial, and
she tells you that she's certain that it was May 13th, 1989 that she went to this alleged
party over at Felicia's house. And the Defendant was with her this entire time. And she's
certain of it because of this illness that she had; she is positive. By the way, we never
heard from Judy Lacy. I'm not saying that the Defense needs to bring her forward. But
wouldn't it have been nice to hear from this person, the friend of the McNelton family?
Regardless of that, and certainly don't hold that against them, it is my burden of proof
to prove beyond a reasonable doubt. But when you're looking at credibility, certainly
that's an issue for you to consider.
(Emphasis added.)
We disagree with the district court's conclusion that this comment went to Wanda
McNelton's credibility and did not shift the burden to the defense. In Ross v. State, 106 Nev.
924, 926, 803 P.2d 1104, 1105 (1990), the prosecutor directed the jury's attention to the fact
that a person whose testimony would have supported the defense theory did not testify and
called on defense counsel to explain why [this person] didn't come forward. This court
stated that such a comment could be viewed as impermissibly shifting the burden of proof to
the defense. Such shifting is improper because it suggests to the jury that the defendant has
the burden to produce proof by explaining the absence of witnesses or evidence. Id. at 927,
803 P.2d at 1105-06. This court concluded that the impact of the prosecutor's above
comment, along with other of the prosecutor's statements including that the main defense
witness was a liar, had the practical effect of shifting the burden of proof to the
defendant.
other of the prosecutor's statements including that the main defense witness was a liar, had
the practical effect of shifting the burden of proof to the defendant. Id. at 927-28, 803 P.2d at
1106. The judgment was reversed on the ground that the errors were not harmless and
deprived the defendant of a fair trial. Id. at 928-29, 803 P.2d at 1106-07.
[Headnote 13]
As in Ross, we conclude here that the prosecutor shifted the burden to the defense by
commenting on Lacy's absence. If the prosecutor only intended to impugn Wanda McNelton's
credibility, he could have asked the jury to consider why she failed to mention the party to
LAPD Detective Crotsley when he interviewed her, or otherwise highlighted her admission
that her memory was not good. However, we conclude that the prosecutor's comment did not
deprive McNelton of a fair trial. Absent this comment, we conclude that the jury would have
reached the same verdict. See id. As mentioned above, substantial evidence was presented
against McNelton. See Rippo v. State, 113 Nev. 1239, 1253-54, 946 P.2d 1017, 1026 (1997)
(because evidence of guilt was overwhelming, holding harmless error where prosecutor's
closing argument comment that there was no testimony that the defendant was elsewhere
when the murder was committed and other comments may have shifted the burden of proof to
the defense), cert. denied, 525 U.S. 841, 119 S. Ct. 104 (1998). Accordingly, we conclude
that counsel were not ineffective on this ground.
4. Failure to object to the jury instruction concerning the statute of limitations for
sale of a controlled substance
[Headnote 14]
McNelton argues that his trial counsel were ineffective for failing to object to guilt phase
jury instruction 18(a):
In the State of Nevada the statute of limitations for the sale of a controlled substance
is three years. This means that the office of the District Attorney may not commence a
criminal proceeding against a suspect for sale of a controlled substance more than three
years after the crime was committed.
There is no statute of limitations for murder.
McNelton argues that this instruction misled the jury about the fact that prosecution
witnesses were receiving favorable treatment for their testimony, possibly because the
instruction implied that the state's alleged failure to commence a criminal proceeding against
prosecution witnesses indicated those witnesses were innocent.
cent. McNelton also argues that the jury was not alerted to those witnesses' bias in favor of
the state.
We conclude that this instruction did not mislead the jury in the manner McNelton
suggests. First, McNelton does not produce any support for this argument, other than to
generally allege that the state did not prosecute certain witnesses for selling drugs in exchange
for their testimony. Although McNelton does not specify which witnesses received favorable
treatment, he is presumably referring to Andre and Linda Lee and Leroy Wilson. Second, the
jury would not infer from the instruction that the state refrained from prosecuting those
witnesses because they were not involved in selling drugs. Andre Lee and Leroy Wilson
admitted on direct examination that they sold cocaine at the time of the shooting. The jury
may have discounted their testimony based on those admissions, regardless of whether those
witnesses were ever convicted for selling drugs on that occasion.
The jury may also have discounted those witnesses' testimony based on information
elicited on cross-examination. For example, Andre Lee testified on cross-examination that in
March 1993, he was convicted of attempted accessory to commit burglary and received a
suspended sentence of two years in prison. Andre Lee also admitted that the main source of
his income in 1989 was narcotic sales and that he used narcotics. On cross-examination of
Linda Lee, she admitted that she sold cocaine. Finally, Wilson testified on cross-examination
that he used cocaine and that drug sales were his only source of income. Accordingly, we
conclude that counsel were not ineffective on this ground.
5. Failure to have McNelton's mother testify during the penalty phase
[Headnote 15]
McNelton contends that trial counsel were ineffective because they failed to call his
mother as a penalty phase witness. He argues that while counsel are bound, for example, by a
client's decision regarding whether the client will testify, counsel were not bound by
McNelton's decision that his mother not testify. Cf. SCR 152(1) (a lawyer shall abide by a
client's decision concerning the objectives of representation).
At the evidentiary hearing on the petition, defense counsel Christensen testified that
although McNelton's mother was present in the courtroom, she was not called as a witness in
mitigation because McNelton forbade the defense from calling her. The decision as to what
mitigating evidence to present was a tactical one. See Howard, 106 Nev. at 722, 800 P.2d at
180. Because defense counsel attempted to have McNelton's mother testify but McNelton
refused to allow them to do so, we conclude that defense counsel were not ineffective.
defense counsel attempted to have McNelton's mother testify but McNelton refused to allow
them to do so, we conclude that defense counsel were not ineffective. Cf. Singleton v.
Lockhart, 962 F.2d 1315 (8th Cir. 1992) (holding that defense counsel was under no duty to
put on mitigating evidence where the defendant made a knowing and intelligent decision not
to present any mitigating evidence).
B. Claims concerning appellate counsel
1. Failure to communicate with McNelton
McNelton argued in the district court, in support of another argument, that he never once
spoke with his appellate attorney. The district court did not specifically address this issue
because it was not raised as a separate issue in the petition. McNelton raises it here, however,
arguing that his appellate counsel was ineffective because counsel failed to consult with
McNelton as he crafted arguments on direct appeal. McNelton argues that counsel's
performance was deficient per se.
[Headnote 16]
The record does not belie McNelton's contention that his appellate counsel did not meet or
speak with him. In July and again in August 1994, appellate counsel filed in this court a
motion to withdraw based on a letter from McNelton stating that appellate counsel did not
answer McNelton's letters, visit him, or take his telephone calls. This court denied the motion,
concluding that McNelton's letter did not constitute good cause for appellate counsel to seek
appointment of a substitute. Appellate counsel did not thereafter seek to withdraw. We
conclude that appellate counsel should have met or spoken with McNelton to discuss his
direct appeal. This court has held that failure to communicate with a client warrants
disciplinary action. See State Bar of Nevada v. Schreiber, 98 Nev. 464, 464, 653 P.2d 151,
151 (1982) (published letter of reprimand stating that communication with a client is, in
many respects, at the center of all services). Although the circumstances in Schreiber are
different from those presented here, the ideas expressed there regarding communication are
always applicable.
However, even assuming that counsel's performance was deficient because he failed to
meet with McNelton, we conclude that McNelton was not prejudiced thereby. There is not a
reasonable probability that the result of the direct appeal would have been different had
McNelton consulted with his counsel with respect to how to proceed. See Strickland, 466
U.S. at 687. McNelton has not specified here any issues that he would have instructed
appellate counsel to raise that counsel neglected to raise.
not specified here any issues that he would have instructed appellate counsel to raise that
counsel neglected to raise. Cf. Stewart v. Warden, 92 Nev. 588, 555 P.2d 218 (1976) (holding
that where attorney failed to raise requested claims on appeal for no apparent reason, good
cause exists to raise those claims on post-conviction). Accordingly, we conclude that counsel
was not ineffective on this ground.
2. Failure to challenge the extradition proceedings
McNelton contends that appellate counsel was ineffective for failing to argue that the trial
court erred in denying his motion to dismiss. He argues that counsel should have argued that
the state relied on hearsay documents and that the case the district court relied on in denying
his motion is not controlling in Nevada and is wrong as a matter of federal law. McNelton
also argues that trial counsel were ineffective for failing to fully investigate and demand an
evidentiary hearing on the extradition issue.
[Headnote 17]
In his motion to dismiss, McNelton argued that Nevada's failure to follow Article III(a) of
the Interstate Agreement on Detainers (IAD) (codified at NRS 178.620) warranted dismissal.
Article III(a) essentially provides that a state must bring a defendant under a term of
imprisonment in another party state to trial within 180 days if:
(1) the defendant has entered upon a term of imprisonment in a penal or correctional
institution of a party state, (2) during the continuance of that term of imprisonment the
charges in question are pending against the defendant in another party state, (3) a
detainer based on such charges has been lodged against the defendant, and (4) the
defendant has caused written notice and request for final disposition of the charges to
be delivered to the appropriate prosecuting authorities and court.
State v. Wade, 105 Nev. 206, 208, 772 P.2d 1291, 1293 (1989) (quoting United States v.
Hutchins, 489 F. Supp. 710, 713 (N.D. Ind. 1980)); see NRS 178.620, Article III(a). Failure
to bring the defendant to trial within 180 days results in dismissal of the charges with
prejudice. Wade, 105 Nev. at 208, 772 P.2d at 1293 (citing NRS 178.620, Article V(c)).
After hearing argument on the motion, the district court concluded that McNelton made an
Article III request to California authorities no later than June 19, 1991,2 which triggered
California's obligation to notify Nevada to retrieve McNelton and try him.
authorities no later than June 19, 1991,
2
which triggered California's obligation to notify
Nevada to retrieve McNelton and try him. The court concluded that McNelton was not even
brought to Nevada until after the 180 days had run. The court entered its written order
granting McNelton's motion on August 18, 1992.
[Headnote 18]
The state moved for rehearing on the ground that at the time it granted McNelton's motion,
the court was operating under the mistaken belief that McNelton had signed the request for
disposition of the charges on June 19, 1991, when that form was actually not dated. The state
also argued that because McNelton had been released on parole prior to being sent to Nevada,
the IAD did not apply. As support, the state attached an affidavit of Nadine Mulkey, the
extradition coordinator for the Clark County District Attorney's office. The affidavit stated
that Mulkey did not receive from either McNelton or California prison authorities a request
for disposition of the charges against him. It further stated that Mulkey examined the request
for disposition and other documents attached to McNelton's motion to dismiss and was not
aware that those documents existed.
At a September 15, 1992 hearing on the state's motion, the district court was concerned
because Mulkey's affidavit contained different facts than the court was aware of previously.
The court said that Mulkey's affidavit was hearsay and the court could not consider it as
evidence of facts. The court took the matter under submission. The next day, however, the
court vacated its order dismissing the case and granted the state's motion solely to reconsider
whether McNelton had been under a term of imprisonment pursuant to Article III(a).
On September 17, 1992, believing that the district court's order granting its motion for
rehearing was a legal nullity, the state appealed from the district court's order dismissing
the case. This court dismissed the appeal, concluding that it lacked jurisdiction because the
district court vacated the order appealed from. In a footnote, this court stated that the district
court was free to consider the applicability of any recent opinions of the United States
Supreme Court, specifically citing Fex v. Michigan, 507 U.S. 43 (1993). State v. McNelton,
Docket No. 23898 (Order Dismissing Appeal, April 27, 1993).
At a hearing on May 6, 1993, the district court stated that although its original order on
this issue was consistent with the dissent in Fex, it believed that the majority in Fex
obligated the court to deny McNelton's motion to dismiss.
__________

2
Actually, the court concluded that McNelton made the request no later than July 19, 1991. Because no
evidence was presented that McNelton made the request in July, however, it appears that the court meant June
19, 1991.
although its original order on this issue was consistent with the dissent in Fex, it believed that
the majority in Fex obligated the court to deny McNelton's motion to dismiss. Fex holds that
Article III(a)'s 180-day time period does not begin to run until a prisoner's request for final
disposition of the charges against him is actually delivered to the court and the prosecuting
officer of the jurisdiction that lodged the detainer against him. Fex, 507 U.S. at 52. Defense
counsel agreed that Fex was dispositive. The court granted the state's motion for
reconsideration, denied McNelton's motion to dismiss, and set the matter for trial.
[Headnote 19]
We conclude that appellate counsel was not ineffective for failing to raise this issue on
appeal because the district court did not abuse its discretion in denying McNelton's motion to
dismiss. See Steese v. State, 114 Nev. 479, 490, 960 P.2d 321, 328 (1998). First, the court
was not bound by its statement at the September 15, 1992 hearing that Mulkey's affidavit was
hearsay. The court could consider Mulkey's statement in her affidavit that the prosecutor's
office did not receive from McNelton a request for final disposition of the charges against
him. Second, Fex is directly on point, and the district court did not err in applying it. See Fex,
507 U.S. at 52. Thus, had appellate counsel argued on appeal that the district court erred in
considering the affidavit because it was hearsay and Fex did not apply, there is not a
reasonable probability that this court would have reversed the judgment. We further conclude
that trial counsel were not ineffective for failing to demand an evidentiary hearing on this
issue. McNelton does not specify what evidence trial counsel would have presented such that
there is a reasonable probability that the district court would have granted the motion.
3. Failure to adequately present the issue that McNelton's Fifth Amendment rights
were violated when the prosecutor commented on McNelton's lack of remorse
[Headnote 20]
McNelton argues that even though appellate counsel raised this issue on direct appeal,
counsel was ineffective for failing to present on direct appeal the plethora of authority
establishing that the prosecutor's comment on McNelton's lack of remorse violated the Fifth
Amendment privilege against self-incrimination. Should this court conclude that this issue
was adequately presented, McNelton argues that he is still entitled to relief because this
court's opinion on direct appeal is wrong.
On direct appeal, this court considered the prosecutor's remarks and concluded that they
did not violate the Fifth Amendment. See McNelton, 111 Nev. at 903-05, 900 P.2d at 936-37.
Our previous holding on this issue is now the law of the case, and this doctrine cannot be
avoided by a more detailed and precisely focused argument. Pertgen v. State, 110 Nev. 554,
557-58, 875 P.2d 361, 363 (1994). Accordingly, we decline to reconsider this issue. See
Marshall v. State, 110 Nev. 1328, 1331, 885 P.2d 603, 605 (1994); Dawson, 108 Nev. at 120,
825 P.2d at 598.
II. Issues McNelton did not raise in his post-conviction petition in the district court
[Headnote 21]
McNelton raises numerous issues that he failed to raise in his petition below. These issues
concern the effectiveness of trial,
3
appellate, and post-conviction counsel.
__________

3
McNelton argues that his trial counsel were ineffective (1) for reasons this court mentioned on direct
appeal: (a) failure to properly prepare McNelton before he made his allocution statement; and (b) failure to
present evidence challenging the validity of McNelton's prior convictions; and (2) for reasons apparent on the
record: (a) failure to investigate and call witnesses concerning whether the state followed the terms of the IAD;
(b) failure to object that the prosecutor's peremptory challenges were gender based and to the defense's mistaken
use of gender-based peremptory challenges; (c) failure to challenge the venire pool on the ground that
African-Americans were underrepresented; (d) failure to have McNelton participate in exercise of peremptory
challenges; (e) failure to investigate the possibility that someone else committed the murder or to fully
investigate McNelton's alibi defense; (f) failure to competently present McNelton's alibi defense, including
failure to interview alibi witnesses and review exhibits allegedly supporting alibi prior to their introduction; (g)
failure to correctly inform the jury as to the date McNelton provided his alibi to the prosecutors; (h) failure to
object or move to preclude the prosecutor from commenting on McNelton's wife's invocation of the spousal
privilege; (i) failure to object or move to preclude the prosecutor from asking questions which suggested that
McNelton intimidated a witness; (j) failure to object or move to preclude introduction of prior consistent
statements; (k) failure to have bench hearings recorded pursuant to SCR 250; (l) failure to object to prosecutorial
misconduct; (m) failure to challenge the constitutionality of Nevada's death penalty scheme; (n) failure to file a
motion to dismiss the under sentence of imprisonment aggravator; (o) failure to object to admission of
evidence outside of the aggravators; (p) failure to request that the jury be required to specify which mitigating
circumstances were considered and rejected; (q) failure to seek dismissal of the notice of intent to seek the death
penalty based on the fact that the death penalty constitutes cruel and unusual punishment prohibited by the
Eighth Amendment; (r) failure to seek dismissal of the death penalty on the ground that it is unconstitutional
under the cruel or unusual provision of the Nevada Constitution; (s) failure to investigate for mitigating
evidence to present at the penalty phase; (t) failure to object to the jury instruction that the Pardons Board has
the power to modify a sentence.
appellate,
4
and post-conviction counsel.
5
He argues that this court may determine as a
matter of law, without the need for an evidentiary hearing, that trial, appellate, and
post-conviction counsel were ineffective, citing Jones v. State, 110 Nev. 730, 877 P.2d 1052
(1994), and Mazzan v. State, 100 Nev. 74, 675 P.2d 409 (1984). In the alternative, McNelton
requests that this court remand to the district court for a hearing on all of his post-conviction
claims.
McNelton generally argues that each of the errors included here but not raised below
deprived him of various rights, including the right to effective assistance of counsel.
McNelton does not, however, allege good cause and prejudice for failing to include these
issues in his petition. See Hill, 114 Nev. at 178, 953 P.2d at 1084 (this court generally
declines to consider issues not raised in a post-conviction petition filed in district court when
no cause and prejudice is alleged for the failure to raise issues below). Accordingly, we do
not address these claims.
CONCLUSION
We conclude that none of the contentions properly before this court has merit.
__________

4
McNelton argues that his appellate counsel was ineffective (1) for reasons this court mentioned on
direct appeal: (a) failure to adequately present the issue concerning McNelton's rights under the Fifth
Amendment and alleged lack of remorse (as this issue was presented in McNelton's petition and is raised here on
appeal, it is addressed earlier in this Opinion); (b) failure to adequately support claim that the under sentence of
imprisonment aggravator is unconstitutional because it is racially biased; (c) failure to adequately set forth
claim regarding evidence that Glass was pregnant and victim impact evidence; and (2) for reasons apparent on
the record: (a) failure to challenge the constitutionality of Nevada's death penalty scheme; (b) failure to argue
that the district court erred in admitting testimony concerning the autopsy of Glass; (c) failure to argue that the
reasonable doubt instruction was invalid.

5
McNelton argues that his post-conviction counsel was ineffective for reasons apparent on the record:
(a) failure to investigate the backgrounds of the state's and McNelton's alibi witnesses in order to challenge the
sufficiency of trial counsel's investigation, and failure to investigate McNelton's background to determine
whether there was mitigating evidence that should have been presented at trial; (b) failure to investigate whether
there was any conflict of interest presented by the public defender's representation of McNelton, any potential
conflict because Judge Thompson is now a supervisor at the Clark County D.A.'s office, or any conflict because
McNelton's attorney Drew Christensen formed a partnership with the prosecutor, Rex Bell, shortly after trial; (c)
failure to raise the above issues; (d) failure to challenge this court's failure to meaningfully review this case on
appeal pursuant to NRS 177.055.
Apparently, post-conviction counsel was appointed in late 1996 or early 1997 pursuant to NRS 34.820(1)(a),
so McNelton was entitled to effective assistance of that counsel. See Crump v. Warden, 113 Nev. 293, 303, 934
P.2d 247, 253 (1997); McKague v. Warden, 112 Nev. 159, 165 n.5, 912 P.2d 255, 258 n.5 (1996).
court has merit. We deny relief with respect to those claims raised for the first time on appeal
because McNelton has failed to show cause and prejudice. The district court's order denying
McNelton's post-conviction petition is affirmed.
____________
115 Nev. 417, 417 (1999) In re Galvez
In re HUGO GALVEZ and THELMA GALVEZ, Debtors.
No. 32643
December 13, 1999 990 P.2d 187
Certified question from the United States Bankruptcy Court concerning the interpretation
of NRS 21.090(1)(g), Nevada's wage garnishment exemption statute. United States
Bankruptcy Court, District of Nevada; Linda B. Riegle, Judge.
Independent contractor real estate agent and his wife filed voluntary petition for
bankruptcy. The United States Bankruptcy Court certified issue for determination. The
supreme court held that real estate commission earned by independent contractor did not fall
within wage garnishment exemption.
Question answered.
Christopher T. Stead, Las Vegas, for Debtors.
Lisowski Law Firm and Elizabeth E. Stephens, Las Vegas, for Trustee, Larry Bertsch.
1. Bankruptcy; Exemptions.
Real estate commission earned by independent contractor who worked as licensed real estate agent did
not fall within wage garnishment exemption, and therefore, commission was to be treated as property of
independent contractor's bankruptcy estate. NRS 21.090(1)(g).
Statutory construction is a question of law that is reviewed de novo.
3. Statutes.
If statutory language is ambiguous, the meaning of the words used in the statute may be discerned by examining the legislature's
intent.
4. Exemptions.
Wage garnishment exemption, which exempts seventy-five percent of judgment debtor's disposable earnings for pay period from
execution, only exempts earnings that are periodic in nature. NRS 21.090(1)(g).
5. Exemptions.
A real estate commission is not periodic compensation falling within purview of wage garnishment exemption, which exempts
seventy-five percent of judgment debtor's disposable earnings for pay period from execution. Real estate commission is paid in single,
lump sum rather than periodically on a weekly or monthly basis. NRS 21.090(1)(g).
115 Nev. 417, 418 (1999) In re Galvez
OPINION
Per Curiam:
SUMMARY
The sole issue presented to this court is whether an independent contractor's real estate
commission is exempt under NRS 21.090(1)(g) in a bankruptcy proceeding. With regard to
this issue, we certify to the United States Bankruptcy Court for the District of Nevada that a
real estate commission is not exempt under NRS 21.090(1)(g) because this statutory
exemption applies solely to periodic payments, and not to lump sum payments of
compensation like a real estate commission.
FACTS
The relevant facts of this matter are not in dispute. In 1997, Hugo Galvez (Hugo)
worked as a licensed real estate agent associated with Medallion Real Estate. Hugo was an
independent contractor and had no employees working for him. Hugo considered himself
self-employed for tax purposes. Indeed, on Hugo's 1995 and 1996 tax returns, he filed a profit
and loss statement for his real estate business, paid self-employment tax, took depreciation on
his car, and deducted telephone costs, referral fees, dues, and publications as business
expenses.
On or about December 5, 1997, Hugo and his wife, Thelma Galvez (collectively
hereinafter the debtors) filed a voluntary petition for bankruptcy seeking relief under
Chapter 7, Title 11 of the United States Code (the petition). Larry L. Bertsch (Bertsch)
was duly appointed as panel trustee. At the meeting of creditors held pursuant to 11 U.S.C.
341(a), Bertsch requested that the debtors turn over funds from a real estate commission
totaling $3,633.00, which was in escrow at the time the petition was filed.
Believing that a portion of this commission was exempt under NRS 21.090(1)(g), the
debtors amended their schedules. On schedule C of the debtors' amended petition, the debtors
claimed an exemption for a real estate sales commission of $2,725.00, seventy-five percent of
the commission in escrow. This commission was generated entirely through Hugo's personal
services and was not earned in whole or in part as a referral or finder's fee.
Bertsch objected to the exemption, arguing that Hugo's commission was properly
characterized as an account receivable, and thus was not disposable earnings exempt under
NRS 21.090(1)(g). Oral argument on this issue was heard by the bankruptcy court on March
25, 1998. Thereafter, the bankruptcy court certified the issue to this court for determination.
115 Nev. 417, 419 (1999) In re Galvez
DISCUSSION
[Headnote 1]
Whether commissions earned by an independent contractor real estate agent for personal
services fall within the wage garnishment exemption set forth in NRS 21.090 is an issue of
first impression in Nevada. The wage garnishment exemption has roots in our state
constitution, which provides:
The privilege of the debtor to enjoy the necessary comforts of life shall be recognized
by wholesome laws, exempting a reasonable amount of property from seizure or sale
for payment of any debts . . . .
Nev. Const. art. 1, 14 (emphasis added). To achieve this constitutional end, the Nevada
Legislature enacted NRS 21.090. See Elder v. Williams, 16 Nev. 416 (1882).
NRS 21.090 provides, in relevant part, as follows:
1. The following property is exempt from execution, except as otherwise specifically
provided in this section:
. . . .
(g) For any period, 75 percent of the disposable earnings of a judgment debtor
during that period, . . . . [D]isposable earnings means that part of the earnings of a
judgment debtor remaining after the deduction from those earnings of any amounts
required by law, to be withheld.
(emphasis added). The legislative purpose of NRS 21.090 is to secure to the debtor the
necessary means of gaining a livelihood, while doing as little injury as possible to the
creditor. Krieg v. Fellows, 21 Nev. 307, 310, 30 P. 994, 995 (1892).
With regard to the scope of NRS 21.090, the debtors ask this court to broadly define
exempted earnings as those wages earned through personal services, regardless whether
these wages were periodic, were earned by an independent contractor, or were an account
payable.
1
We cannot interpret NRS 21.090 in this manner because it is clear from our
analysis that NRS 21.090 only exempts periodic payments of earnings.
__________

1
We recognize that some jurisdictions have interpreted the Consumer Credit Protection Act to exempt all
wages earned through personal services, and have drawn no distinction based on the form of the compensation
or the independent contractor status of the worker. See, e.g., Kobernusz v. Kobernusz, 160 B.R. 844, 847
(Bankr. D. Colo. 1993); In re Duncan, 140 B.R. 210, 213 (Bankr. E.D. Tenn. 1992); Marian Health Ctr. v.
Cooks, 451 N.W.2d 846, 848 (Iowa Ct. App. 1989); Gerry Elson Agency, Inc. v. Muck, 509 S.W.2d 750, 753
(Mo. Ct. App. 1974); First Nat'l Bank of Guthrie v. Brown, 579 P.2d 825 (Okla. 1978).
We further recognize that other jurisdictions, relying on the identical language and congressional intent of the
Consumer Credit Protection Act, have disregarded the form of the compensation and exempted only those wages
earned through an employee-employer relationship. See, e.g., Usery v. First Nat'l Bank of Ariz., 586 F.2d 104
(9th Cir. 1978); In re Moriarty, 27 B.R.
115 Nev. 417, 420 (1999) In re Galvez
ner because it is clear from our analysis that NRS 21.090 only exempts periodic payments of
earnings.
[Headnotes 2, 3]
Statutory construction is a question of law that is reviewed de novo. State, Dep't of Mtr.
Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994). If statutory language is
plain and unambiguous, this court has held that it will not go beyond its literal meaning.
Maxwell v. SIIS, 109 Nev. 327, 330, 849 P.2d 267, 270 (1993). However, if statutory
language is ambiguous, the meaning of the words used in the statute may be discerned by
examining the legislature's intent. Rodgers v. Rodgers, 110 Nev. 1370, 1373, 887 P.2d 269,
271 (1994).
Although the definition of earnings is not further defined in NRS 21.090 or in an
accompanying Nevada statute, we have looked to the Consumer Credit Protection Act
(CCPA), for guidance see 15 U.S.C. 1601 et seq. (1998), as the Nevada Legislature
amended NRS 21.090 in 1969 to conform to the CCPA. See Hearing on A.B. 349 Before the
Judiciary Comm., 55th Leg. (Nev., April 9, 1969); see also Securities Investment Co. v.
Donnelley, 89 Nev. 341, 347 n.6, 513 P.2d 1238, 1242 n.6 (1973) (noting that the courts of
the adopting state shall usually follow the construction placed on the statute in the jurisdiction
of its inception).
The CCPA defines earnings as compensation paid or payable for personal services,
whether denominated as wages, salary, commission, bonus or otherwise, and includes
periodic payments pursuant to a pension or retirement program. 15 U.S.C. 1672(a) (1998).
The CCPA further defines disposable earnings as that part of the earnings of any
individual remaining after the deduction from those earnings of any amounts required by law
to be withheld. 15 U.S.C. 1673(b) (1998).
[Headnote 4]
In interpreting the aforementioned statutes, the United States Supreme Court has held that
the wage garnishment exemption only exempts periodic payments of compensation and does
not apply to every asset traceable in some form to such compensation. See Kokoszka v.
Belford, 417 U.S. 642, 651 (1974); accord Pallante v. International Venture Inv., 622 F.
Supp. 667, 669 (N.D. Ohio 1985); Fisher Body v. Lincoln Nat'l Bank & Trust Co., 563
N.E.2d 149 {Ind. Ct. App. 1990). In so doing, the Court reasoned that:
__________
73, 74 (Bankr. M.D. Fla. 1983); Coward v. Smith, 636 P.2d 793, 797 (Kan. Ct. App. 1981); Olson v. Townsend,
530 A.2d 566, 568 (Vt. 1987); Melby & Co. Bank v. Anderson, 276 N.W.2d 274 (Wis. 1979).
We reject these jurisdictions' interpretation of the Consumer Credit Protection Act and conclude that this act
only exempts earnings that are periodic in nature.
115 Nev. 417, 421 (1999) In re Galvez
Co., 563 N.E.2d 149 (Ind. Ct. App. 1990). In so doing, the Court reasoned that:
The Congress did not enact the [CCPA] in a vacuum.
. . . .
An examination of the legislative history of the [CCPA] makes it clear that, while it
was enacted against the background of the Bankruptcy Act, it was not intended to alter
the clear purpose of the latter Act to assemble, once a bankruptcy petition is filed, all of
the debtor's assets for the benefit of the creditors.
. . . .
There is every indication that Congress, in an effort to avoid the necessity of
bankruptcy, sought to regulate garnishment in its usual sense as a levy on periodic
payments of compensation needed to support the wage earner and his family on a
week-to-week, month-to-month basis. There is no indication, however, that Congress
intended to alter the delicate balance of a debtor's protections and obligations during the
bankruptcy procedure.
417 U.S. at 651 (citations omitted) (emphasis added). We consider this reasoning compelling,
as it attempts to balance the inherent tension between the need to protect debtors from
predatory garnishments and the need to secure assets to meet the debtors' obligations to the
creditors. Therefore, in light of the holding in Kokoszka, we conclude that NRS 21.090(1)(g)
only exempts earnings that are periodic in nature.
[Headnote 5]
Applying this conclusion to the present matter, it is clear that a real estate commission
does not fall within the purview of NRS 21.090(1)(g). A real estate commission is paid at the
close of escrow in a single, lump sum, rather than periodically on a weekly or monthly basis.
Accordingly, a real estate commission is not periodic compensation exempted under NRS
21.090(1)(g).
CONCLUSION
Based on the foregoing analysis, we conclude that NRS 21.090(1)(g) exempts only
periodic payments of compensation. Therefore, NRS 21.090(1)(g) did not exempt the real
estate commission owed to Hugo because it was payable in a lump sum, rather than on a
periodic basis. Bertsch, therefore, had the right to treat the real estate commission as property
of the bankruptcy estate.
____________
115 Nev. 422, 422 (1999) Dwello v. American Reliance Insurance Co.
ALISA DWELLO, as Parent and Guardian ad Litem for STEFANIE LAWRENCE,
Appellant, v. AMERICAN RELIANCE INSURANCE COMPANY, an Arizona
Corporation, PATTY KENYON, and STEVE KENYON, Respondents.
No. 30928
December 28, 1999 990 P.2d 190
Appeal from declaratory judgment following a bench trial adjudicating dispute over the
extent of coverage of a homeowner's insurance policy. Eighth Judicial District Court, Clark
County; Lee A. Gates, Judge.
Homeowner's insurer brought declaratory judgment action, seeking determination that it
owed no duty to defend or indemnify insured in negligence action brought by parent of child
attacked and severely injured by insured's dog. The district court allowed parent to intervene
in declaratory judgment action, and subsequently granted insurer's petition for declaratory
relief. Parent appealed. The supreme court held that insured's babysitting of child fell within
business pursuits exclusion of homeowner's policy.
Affirmed.
Law Offices of Frank C. Cook, Las Vegas, for Appellant.
Pico & Mitchell and Daniel E. Carvalho, Las Vegas; John & Elizabeth Foley Law Offices,
Las Vegas, for Respondents.
Only when the trial court's factual finding is clearly erroneous will the supreme court reverse.
2. Insurance.
In determining whether part-time babysitting in insured's home fell within business pursuits exclusion in homeowner's policy, the
appropriate factors for trial court to consider were: (1) whether the pursuit involved a continuity or customary engagement in the
activity, and (2) whether the activity involved a profit motive.
3. Insurance.
Insured's babysitting of neighbor child fell within business pursuits exclusion of homeowner's policy, and thus insurer was not
obligated to indemnify and defend insured in negligence action brought by parent of child after child was attacked and severely injured
by insured's dog, where insured babysat child for approximately fifty hours per week for period of one month, and money earned by
insured for babysitting child constituted forty percent of her income.
4. Insurance.
Insured's primary role in babysitting neighbor child was to maintain safe, healthy environment and to keep child out of harm's way,
and thus attack by insured's dog upon child was not exception to business pursuits exclusion in insured's homeowner's policy, and
insurer was not obligated under policy to either defend or indemnify insured in negligence suit brought by child's
parent.
under policy to either defend or indemnify insured in negligence suit brought by child's parent.
OPINION
Per Curiam:
FACTS
Alisa Dwello (Dwello) is a single working mother caring for her eleven-year-old daughter,
Stefanie Lawrence (Stefanie). When Stefanie was seven years of age, Dwello asked her
neighbor, Patty Kenyon (Kenyon), to care for Stefanie while Dwello worked. Kenyon agreed
and cared for Stefanie from 6:00 a.m. to 4:00 p.m. five days a week for approximately one
month at the rate of $50.00 per week. Kenyon's babysitting revenues for Stefanie's care
accounted for forty percent of her total monthly income. In July, 1995, Kenyon's dog attacked
Stefanie, severely injuring Stefanie's face, head, and eye.
In August, 1995, Dwello filed a complaint against Kenyon and her husband alleging that
they failed to adequately protect Stefanie from their dog, knowing its propensity to bite, and
that they failed to inform Dwello that the dog had bitten other children.
The Kenyons forwarded the complaint to the carrier of their homeowner's insurance
policy, American Reliance Insurance Company (American Reliance), seeking indemnity and
defense. In March, 1996, American Reliance filed an action for declaratory judgment alleging
that they had no duty to defend or indemnify the Kenyons. The Kenyons then filed for
Chapter Seven bankruptcy. In September, 1996, the district court allowed Dwello to intervene
in the declaratory judgment action.
In July, 1997, the district court held a one-day bench trial to adjudicate the declaratory
relief action. American Reliance argued that the business pursuits provision in the
homeowner's policy shielded American Reliance from liability. That provision states:
Comprehensive Personal Liability Coverage and Medical Payments to Others Coverage
Does Not Pay for Bodily Injury or Property Damage:
Arising out of your business pursuits. This also includes your occasional or part-time
business pursuits.
1

__________

1
The insurance policy also contains a provision which states: Comprehensive Personal Liability Does Not
Pay For: Bodily injury to you or to other persons under age 21 in your care. However, none of the parties
briefed this provision nor did any party present this provision at oral arguments.
The Kenyons argued that Kenyon would have watched Stephanie without compensation, if
necessary, and thus the business pursuits exclusion was inapplicable. Likewise, Dwello
argued that the exclusion did not apply because Kenyon was unlicensed, only watched one
child not her own, and did not advertise.
The district court found that Kenyon watched Stephanie from 6:00 a.m. to 4:00 p.m. for
one month and was paid at the rate of $50 per week. Further, the court determined that the
payment was for services rendered and constituted approximately forty percent of Kenyon's
total monthly salary. On the basis of these findings, the district court concluded that Kenyon
was engaged in a business pursuit within the meaning of the exclusion in the American
Reliance policy and granted the American Reliance petition for declaratory relief. Dwello
filed this timely appeal.
DISCUSSION
[Headnotes 13]
Whether the babysitting in this situation triggers the business pursuits exclusion in the
homeowner's insurance policy is a question of fact for the trial court. Only when this finding
is clearly erroneous will this court reverse. See Trident Construction v. West Electric, 105
Nev. 423, 426, 776 P.2d 1239, 1241 (1989). The exclusion provision in the insurance policy
is clear and unambiguous, and it is for the trial court to determine whether the homeowner is
engaged in a business pursuit. Other courts that have addressed the issue are divided on the
question of whether babysitting falls within the business pursuits exception.
2
In Carroll v.
Boyce, 640 A.2d 298 (N.J. Super. Ct. App. Div. 1994), the New Jersey appellate court
applied a two-factor test to determine whether the babysitting in question fell within the
business pursuits exception. The two factors that the court considered are: (1) whether the
pursuit involves a continuity or customary engagement in the activity; and (2) whether the
activity involves a profit motive. Id. at 300. We agree that these are the appropriate factors to
consider. The findings of fact made by the district court show that those factors were
considered when the court found that Kenyon was engaged in a business pursuit within the
meaning of the exclusion in the American Reliance policy.
__________

2
Compare Stanley v. American Fire & Cas. Co., 361 So. 2d 1030 (Ala. 1978) (supervising children on a
regular basis for compensation is ordinarily a business pursuit); Farmers Ins. Co. of Arizona v. Wiechnick, 801
P.2d 501 (Ariz. Ct. App. 1990); Carroll v. Boyce, 640 A.2d 298 (N.J. Super. Ct. App. Div. 1994); Watkins v.
Brown, 646 N.E.2d 485 (Ohio Ct. App. 1994) with United Services Auto. Ass'n v. Lucas, 408 S.E.2d 171 (Ga.
Ct. App. 1991) (holding that babysitting did not qualify for the business pursuits exception even though
babysitter reported babysitting income on her tax returns and possessed a child care license); State Farm Fire &
Cas. Co. v. Reed, 873 S.W.2d 698 (Tex. 1993).
the exclusion in the American Reliance policy. We conclude that there was substantial
evidence to support the district court's findings.
[Headnote 4]
Dwello also argues that the dog bite was an exception to the business pursuits exclusion
since it was one of the [a]ctivities which are ordinarily incidental to non-business pursuits.
A babysitter's primary role is to maintain a safe, healthy environment and to keep the child
out of harm's way. While the babysitter's services are engaged, the babysitter maintains a
continuous duty to provide for the child. The dog bite was related to negligent supervision,
and was not incidental to non-business pursuits. Thus, the exception to the exclusion does
not apply.
Therefore, we affirm the judgment of the district court that American Reliance had no duty
to defend or indemnify the Kenyons under the homeowner's insurance policy pursuant to the
business pursuit exclusion.
____________
115 Nev. 425, 425 (1999) Fletcher v. State
AARON FLETCHER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30963
December 28, 1999 990 P.2d 192
Appeal from a judgment of conviction pursuant to a jury verdict on one count each of
misdemeanor battery and trafficking in a controlled substance. Eighth Judicial District Court,
Clark County; Mark Gibbons, Judge.
Defendant was convicted in the district court of one count each of misdemeanor battery
and trafficking in a controlled substance, and he appealed. The supreme court held that: (1)
police officers had probable cause to believe that defendant's automobile contained evidence
of drug trafficking, and (2) evidence of drug trafficking discovered by police officers during
warrantless search of defendant's automobile was admissible at criminal trial.
Affirmed.
Kajioka, Christiansen & Toti, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Christopher J. Laurent, Deputy District
Attorney, Clark County, for Respondent.
1. Searches and Seizures.
The warrantless search of a parked, immobile, unoccupied automobile requires: (1) probable cause to
believe that the vehicle contains contraband, and (2) exigent circumstances sufficient to dispense with the
need for a warrant.
2. Drugs and Narcotics.
Police officers had probable cause to believe that defendant's automobile contained evidence of drug trafficking, where defendant's
former girlfriend had described to police defendant's protocol for selling drugs and location of drugs in steering column of defendant's
automobile, and undercover officer attempted to buy drugs from defendant, but defendant backed out of transaction, explaining that he
did not feel comfortable selling to officer.
3. Drugs and Narcotics.
Evidence of drug trafficking discovered by police officers during warrantless search of defendant's automobile was admissible in
prosecution for trafficking in a controlled substance, where police officers searched defendant's automobile following his roadside
arrest on unrelated battery charge. Automobile left by side of road was subject to later police inventory search and impoundment,
creating exigent circumstances.
Before Rose, C. J., Shearing and Becker, JJ.
OPINION
Per Curiam:
SUMMARY
On April 24, 1995, Yolanda Smith (Smith) filed a criminal report with the Las Vegas Metropolitan Police Department alleging that
she had been kidnapped and beaten by Aaron Fletcher (Fletcher). Smith also informed police of Fletcher's involvement in drug trafficking
and described both Fletcher's protocol for selling drugs and the location of the drugs in the steering column of Fletcher's automobile. After a
brief investigation, during which police attempted to purchase drugs from Fletcher, police pulled Fletcher's vehicle over and arrested him
for the kidnapping and battery of Smith. During the arrest, police searched Fletcher's automobile pursuant to the information obtained from
Smith and found bags of cocaine hidden behind the dashboard. At a pretrial hearing, Fletcher's motion to suppress this evidence was
denied, and he was eventually convicted on the trafficking and battery charges in May 1997. Fletcher now appeals, claiming that the district
court abused its discretion in denying his motion to suppress. We hold that the district court did not err in admitting the drug evidence, and
accordingly affirm the judgment below.
FACTS
At Fletcher's trial for kidnapping, battery, coercion, and drug trafficking, Smith testified
that she had lived with Fletcher and had helped him sell drugs since March 1995. Smith then
testified that on April 20, 1995, Smith, Fletcher, a friend of Fletcher's named Darryl, and
another female engaged in the sale of drugs at a local motel, where Smith was to engage in
prostitution and sell drugs from one of the motel rooms. Smith testified that at one point in
the evening, Darryl began beating her for refusing to prostitute herself for Fletcher. Fletcher
then allegedly joined in the beating and abuse of Smith, which involved kicking Smith
repeatedly, forcing Smith to take a cold shower and stand in a closet for an hour, urinating on
Smith, and forcing Smith to sleep under the bed mattress for the rest of the evening.
Four days after the incident, on April 24, 1995, Smith filed a criminal report with the Las
Vegas Metropolitan Police Department recounting the incident and describing the method by
which Fletcher sold drugs. Smith told Detective Victor Vigna (Det. Vigna) that individuals
wanting to purchase drugs could call Fletcher's pager number, input with their message the
dollar amount of the drugs that they wanted to purchase, and then meet Fletcher, who would
then deliver the drugs from his white Toyota Corolla. Smith also informed Det. Vigna that
Fletcher hid the drugs in the steering column of the car.
On May 5, 1995, Det. Vigna attempted to purchase drugs from Fletcher using the protocol
Smith had described. After paging Fletcher and arranging for a meeting, Det. Vigna met
briefly with Fletcher outside of a grocery store, but Fletcher felt uncomfortable and told Det.
Vigna that he did not want to sell him anything. Fletcher then left the scene.
At approximately midnight on May 11, 1995, Det. Vigna and other officers conducting
surveillance on Fletcher observed him departing from work in his white Toyota Corolla and
decided to arrest him for the kidnapping and battery of Smith. Because Smith had informed
Det. Vigna that Fletcher often carried a gun, the police made a felony traffic stop, requiring
Fletcher to exit the vehicle with his hands up and then to lie prone until police could secure
the area.
After Fletcher was arrested for the kidnapping and battery charges, Detective Gawain
Guedry (Det. Guedry) and another officer who was accompanying Det. Vigna were ready to
perform an inventory search of Fletcher's automobile. Before beginning the search, Det.
Guedry was instructed by Det. Vigna to search for drugs in the steering column area, which
had been identified by Smith as Fletcher's hiding spot. Lying on his back and reaching behind
the dash, Det. Guedry recovered two bags with a rocklike substance that was later
identified as cocaine.
ing behind the dash, Det. Guedry recovered two bags with a rock-like substance that was later
identified as cocaine. Det. Guedry and the other officer then completed their inventory of the
car.
On June 13, 1995, Fletcher was charged with the crimes of first degree kidnapping, battery
with substantial bodily harm, coercion, and trafficking in a controlled substance.
On March 3, 1997, the district court heard Fletcher's motion to suppress the drug evidence
obtained during the police search of Fletcher's vehicle. The district court denied Fletcher's
motion, ruling that there was probable cause to arrest Fletcher on the trafficking charges that
allowed the police to perform a warrantless search of Fletcher's automobile for the drugs. In
the alternative, the district court found that the drug evidence was admissible as part of a
proper inventory search or admissible under the doctrine of inevitable discovery.
At trial, Fletcher was found guilty of trafficking in a controlled substance and
misdemeanor battery and was sentenced to six years for the trafficking charge and to a
concurrent six months for the battery charge. Additionally, the district court ordered Fletcher
to pay a $25.00 assessment fee and a $50,000.00 fine. Fletcher now appeals, claiming the
district court abused its discretion in admitting the drug evidence seized from his vehicle.
DISCUSSION
Fletcher contends that the district court erred in denying his motion to suppress the drug
evidence seized by the police because it was obtained as part of a warrantless search that was
not within any exception to the general warrant requirement.
1
We disagree with Fletcher's
contention and hold that the evidence was lawfully obtained within the automobile exception
to the general warrant requirement, and was therefore properly admitted by the district court.
2

[Headnote 1]
This court recently had the opportunity to address the automobile exception to searches
that require a search warrant in our decisions in State v. Harnisch, 113 Nev. 214, 931 P.2d
1359 (1997) (Harnisch I), State v. Harnisch, 114 Nev. 225, 954 P.2d 1180 (1998) (Harnisch
II), and Barrios-Lomeli v. State, 113 Nev. 952, 944 P.2d 791 (1997). In Harnisch I, we held
that a warrantless search of a parked, immobile, unoccupied automobile requires:
__________

1
Additionally, Fletcher contends that there was insufficient evidence to sustain his conviction for battery. We
have considered Fletcher's argument and conclude that it is without merit.

2
Because we hold that the police search of Fletcher's vehicle was proper under the automobile exception, we
decline to address the other alternative bases on which the district court relied.
rantless search of a parked, immobile, unoccupied automobile requires: (1) probable cause to
believe that the vehicle contains contraband; and (2) exigent circumstances sufficient to
dispense with the need for a warrant.
3
See 113 Nev. at 222-23, 931 P.2d at 1365. Further, it
is clear that a variety of exigencies may exist that give rise to the proper dismissal of the
warrant requirementfor example, medical emergencies; substantial threats to life, health, or
property; safety concerns; and the necessity to determine whether victims or suspects are on
the premises. See Harnisch II, 114 Nev. at 228, 954 P.2d at 1182.
In Harnisch I, police were executing a search warrant in Harnisch's apartment for evidence
relating to a kidnapping and robbery charge when Harnisch arrived home in his automobile
and parked in his designated space. See 113 Nev. at 218, 931 P.2d at 1362. After taking
Harnisch into custody, the police conducted a warrantless search of the trunk of Harnisch's
automobile, where they found a telephone book containing names and addresses of other
individuals who later became suspects. See id. In analyzing whether the automobile exception
applied, this court held that although there may have been probable cause to believe criminal
evidence was in the vehicle, there were no exigent circumstances sufficient to dispense with
the need for a separate warrant because the opportunity to search the car was not fleeting.
Id. at 222-23, 931 P.2d at 1365-66.
In Barrios-Lomeli, police acting on information that Lomeli was in town to deliver drugs
found Lomeli and his girlfriend in a local store and detained Lomeli for the statutory one-hour
investigative period. See 113 Nev. at 958, 944 P.2d at 794. Police then proceeded to search
Lomeli's automobile that was parked in the store's parking lot and found four ounces of
methamphetamine.
__________

3
The automobile exception to the general requirement for search warrants was first enunciated by the
Supreme Court of the United States in Carroll v. United States, 267 U.S. 132 (1925). In Carroll, the Court held
that officers could conduct a warrantless search of a vehicle where there was probable cause to believe that the
vehicle contained contraband and where there were sufficient exigent circumstances based on the vehicle's ready
mobility. Id. at 153-54. The scope of the Carroll automobile search was clarified by the Supreme Court in
United States v. Ross, 456 U.S. 798 (1982), where it held that [i]f probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the
object of the search. Id. at 825.
In later decisions, the Court emphasized a second justification for allowing vehicle searches based on probable
cause: the pervasive scheme of automobile regulation that created a reduced expectation of privacy. See
California v. Carney, 471 U.S. 386, 392 (1985). Although the Supreme Court of the United States has
de-emphasized the exigency requirement in its current jurisprudence, this court has recently recognized the
requirement's continuing vitality for searches of parked, immobile, unoccupied vehicles. See Harnisch II, 114
Nev. 225, 954 P.2d 1180 (1998).
store's parking lot and found four ounces of methamphetamine. See 113 Nev. at 954-55, 944
P.2d at 792. This court held that Lomeli's parked vehicle was within the scope of the police
detainment, and thus could not be moved during this time and gave the police a one-hour
opportunity in which to obtain a telephone warrant for the vehicle. See 113 Nev. at 958, 944
P.2d at 794. Thus, in analyzing whether the automobile exception applied, this court held that
regardless of whether the police had probable cause to believe Lomeli's vehicle contained
criminal evidence, there were no sufficient exigent circumstances to justify the warrantless
search because the automobile could not be driven away during the detainment period. See id.
[Headnotes 2, 3]
Analyzing whether the automobile exception applies to the facts of the present case, we
conclude that the police search for and seizure of drug trafficking evidence found in Fletcher's
vehicle was proper. First, based on our review of Smith's testimony and Det. Vigna's earlier
contact with Fletcher, we hold that the police had probable cause to believe Fletcher's
automobile contained evidence of drug trafficking. Next, we note that in contrast to Harnisch
I, Harnisch II, and Barrios-Lomeli, the present case involves the warrantless search of
Fletcher's automobile subsequent to Fletcher's roadside arrest on a separate charge. As a result
of this arrest, Fletcher's vehicle was left on the roadside subject to a police inventory search
and later impoundment, creating what we conclude to be a sufficient exigent circumstance
distinct from the parked, unoccupied vehicles in Harnisch I, Harnisch II, and Barrios-Lomeli.
It would be unreasonable to require the police to remain at the scene of the arrest pending the
arrival of a warrant or assign an officer to accompany the tow truck to an impound yard
pending the arrival of a warrant. Therefore, we conclude that the district court properly
admitted the evidence of drug trafficking found in Fletcher's automobile.
CONCLUSION
We conclude that the district court did not err in admitting evidence of drug trafficking
found during a warrantless search of Fletcher's automobile because the search was supported
by probable cause and was performed concurrent with Fletcher's roadside arrest for an
unrelated charge. Accordingly, we affirm the judgment of the district court.
____________
115 Nev. 431, 431 (1999) Luster v. State
GEORGE W. LUSTER, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32449
December 28, 1999 991 P.2d 466
Appeal from a judgment of conviction pursuant to a jury verdict of one count each of first
degree murder with the use of a deadly weapon, discharging a firearm at or into a structure,
burglary while in possession of a firearm, conspiracy to commit first degree kidnapping, first
degree kidnapping with the use of a deadly weapon, extortion with the use of a deadly
weapon, robbery with the use of a deadly weapon, child endangerment, and two counts of
coercion with the use of a deadly weapon. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Defendant was convicted in the district court of one count each of first degree murder with
the use of a deadly weapon, discharging a firearm at or into a structure, burglary while in
possession of a firearm, conspiracy to commit first degree kidnapping, first degree
kidnapping with the use of a deadly weapon, extortion with the use of a deadly weapon,
robbery with the use of a deadly weapon, child endangerment, and two counts of coercion
with the use of a deadly weapon, and he appealed. The supreme court held that evidence of
defendant's involvement in kidnapping obtained by police during execution of search warrant
relating to murder investigation was admissible in subsequent prosecution for those and other
offenses.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Miller and Scott Coffee, Deputy
James Tufteland, Chief Deputy District Attorney, and William Hehn, Deputy District
Attorney, Clark County, for Respondent.
The plain view doctrine allows the seizure of objects not specified in a search warrant so long as certain
criteria are met: (1) the initial intrusion of the police must be lawful; (2) the police must inadvertently
discover the incriminating evidence; (3) it must be immediately apparent to the police that the items they
observe may be evidence of a crime.
Under the immediately apparent requirement of the plain view doctrine, the seizure of property in plain view is presumptively
reasonable, assuming that there is probable cause to associate the property with criminal activity.
It was immediately apparent to police officers executing warrant to search defendant's home for evidence
of murder that items in plain view within home were evidence of unrelated kidnapping, and thus evidence
seized was admissible in subsequent prosecution for those and other offenses, where defendant was suspect
in kidnapping, officers executing warrant were familiar with kidnapping victim's description of house in
which he was held, and it was immediately obvious to officers that defendant's home matched victim's
description.
Before Rose, C. J., Maupin and Shearing, JJ.
OPINION
Per Curiam:
SUMMARY
George W. Luster, Jr. (Luster) contends that evidence obtained from his home
implicating him in a kidnapping was improperly admitted at trial because the evidence was
not within the scope of the search warrant the police were executing at the time the evidence
was seized. The search warrant issued covered a search for evidence concerning Luster's
involvement in a murder investigation, which was later linked to the kidnapping. At an
evidentiary hearing before Luster's trial for both crimes, the district court concluded that the
evidence seized was properly obtained within the plain view doctrine. We agree with the
district court ruling and affirm the judgment below.
FACTS
In June 1995, Tamara Campos (Campos), a resident of Las Vegas, allegedly took
between $20,000.00 and $200,000.00 from Luster, her ex-boyfriend. With her sons Adam and
Joey, Adam's girlfriend Erica Meyers (Meyers), and her mother, Campos traveled to Mt.
Charleston in a blue van she had recently purchased. During the trip, Meyers was arrested for
giving false information to a police officer and was eventually released to her half-brother
Robert Humphreys (Humphreys). After staying with Humphreys for a few days, Meyers
and the Campos family left Las Vegas again in a white automobile, which Campos had
obtained after exchanging the blue van with Jose Tito Quijada (Quijada).
On the evening of June 25, 1995, a few days after Meyers had left on her second trip with
the Campos family, Humphreys was abducted by a man he later identified as Luster.
Humphreys testified that he was led out of his house, held at gunpoint, forced into a car by
the abductor and another individual, and driven away to an unidentified home.
to an unidentified home. To prevent Humphreys from escaping or being able to identify his
location, the abductors handcuffed Humphreys and covered his head in a pillowcase-type
covering, which was then wrapped with duct tape. After being questioned repeatedly about
Campos' whereabouts, Humphreys was driven to a second house. Although he was
handcuffed and had his head mostly covered, Humphreys testified that he was able to observe
that the second house had a dirt yard, tile flooring, a staircase, and blue carpeting. In an
upstairs room of the house, one of the abductors removed the pillowcase where Humphreys
observed a large container of birdseed in the room. Eventually, the abductors released
Humphreys by leaving him tied up in his pickup truck outside of a store.
On July 10, 1995, at approximately 9:00 a.m., Quijada, who had traded his white car for
Campos' blue van, was shot and killed outside of his workplace by a man witnesses and
investigators later identified as Luster. An autopsy of Quijada revealed that he had been shot
approximately eleven times with a .40 caliber gun.
Based on the eyewitness accounts of the incident and the information regarding the
weapon used, police obtained a search warrant for Luster's house to seize a .40 caliber
semi-automatic handgun, a dark blue shirt, a pair of khaki shorts or pants, a black cap, any
documents identifying Luster's location on July 10, 1995, and any documents identifying the
person in control of the premises.
In a pretrial evidentiary hearing, the officer investigating Quijada's murder Detective Roy
Chandler (Det. Chandler) testified that prior to executing the search warrant, he had been
told of Humphreys' kidnapping and that Luster was a suspect in that investigation. Det.
Chandler stated specifically that before the warrant was executed, he had read some of the
kidnapping reports and obtained from the detective in charge of the kidnapping investigation
a description of the house in which Humphreys was held.
At approximately 9:00 a.m. on July 15, 1995, the police executed the search warrant of
Luster's residence. Luster was not home at the time. Det. Chandler, who was present at the
search, stated that he immediately recognized the similarities between Luster's house and the
one Humphreys had described. Therefore, he instructed photographs to be taken of everything
inside. During the execution of the warrant, police discovered and seized a 12-gauge shotgun,
a gun clip, several rolls of duct tape, and a duffel bag containing 12-gauge shotgun shells, a
box of 9mm ammunition, an ammunition clip, and an additional roll of duct tape. Police also
photographed an upstairs room in which a plastic container of birdseed was found.
During the search, Luster contacted the police and explained that he wanted to turn himself
in. Det. Chandler left the search to meet with Luster, who then signed a consent for the police
to search his home. In Luster's evidentiary hearing, the district court determined that this
consent was given later than the actual seizure of the evidence.
On January 29, 1996, the State charged Luster with numerous crimes including first degree
murder with the use of a deadly weapon and first degree kidnapping with the use of a deadly
weapon.
On September 23, 1996, Luster moved to suppress the evidence the police had seized that
was beyond the scope of the warrant, claiming that such evidence pertained to the kidnapping
charge, and was therefore unconstitutionally obtained as part of a warrantless search.
On January 20, 1998, the district court conducted an evidentiary hearing regarding Luster's
motion and concluded that the evidence, although it had been seized prior to Luster's consent,
was still lawfully obtained. Further, the district court found that the photographs were taken
in the course of a proper police investigation. Accordingly, the district court denied Luster's
motion to suppress.
At trial, the jury found Luster guilty on all counts. Luster now appeals claiming in part that
the district court erred in denying his pretrial motions to suppress evidence.
DISCUSSION
Luster contends that the district court erred in denying his motion to suppress the seized
evidence that exceeded the scope of the search warrant.
1
We conclude that the evidence was
lawfully obtained under the plain view doctrine, and was therefore properly admitted by the
district court.
[Headnote 1]
The plain view doctrine announced by the Supreme Court of the United States in Coolidge
v. New Hampshire, 403 U.S. 443 (1971), allows the seizure of objects not specified in a
search warrant so long as certain criteria are met: (1) the initial intrusion of the police must be
lawful; (2) the police must inadvertently discover the incriminating evidence; (3) it must be
immediately apparent" to the police that the items they observe may be evidence of a
crime.
__________

1
Luster further contends that the district court erred in denying his motion to dismiss counts, suppress
fingerprint evidence, or give a jury instruction regarding the State's failure to preserve the water bottle evidence;
and in failing to give jury instructions that adequately distinguished between premeditation/deliberation and
malice aforethought. We have considered Luster's arguments and conclude that they are without merit.
apparent to the police that the items they observe may be evidence of a crime. See Koza v.
State, 100 Nev. 245, 253-54, 681 P.2d 44, 49 (1984) (applying the Coolidge test); see also
Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). Because the parties do not
contest the first two criteria, the focus of our discussion is on the immediately apparent
requirement.
2

[Headnote 2]
This court has recognized that the immediately apparent requirement should not be
interpreted too strictly, since it can be taken to imply that an unduly high degree of
certainty as to the incriminatory character of evidence is necessary.' Koza, 100 Nev. at 254,
681 P.2d at 49-50 (quoting Texas v. Brown, 460 U.S. 730, 741 (1983)). The proper
interpretation of the requirement is that the seizure of property in plain view is
presumptively reasonable, assuming that there is probable cause to associate the property
with criminal activity.' Id. at 255, 681 P.2d at 50 (emphasis omitted) (quoting Payton v.
New York, 445 U.S. 573, 587 (1980)).
[Headnote 3]
In the instant case, there was probable cause to associate the evidence with criminal
activity, thus satisfying the immediately apparent requirement.
3
Probable cause existed
because prior to the execution of the search warrant, the police had knowledge of Humphreys'
kidnapping and were aware of Luster's possible involvement therein. Further, during the
execution of the warrant, the police realized that the house matched Humphreys' description
and properly concluded that it might contain evidence pertaining to Humphreys' kidnapping.
Finally, the evidence obtained was likely associated with the kidnapping, which Humphreys
stated involved being held at gunpoint and bound with duct tape. Accordingly, we conclude
that the evidence seized from Luster's home regarding his involvement in the kidnapping was
lawfully obtained and that the district court properly admitted such evidence at trial.
__________

2
We note that in Horton v. California, 496 U.S. 128 (1990), the Supreme Court of the United States held that
the inadvertent discovery requirement of the plain view doctrine was unnecessary. However, because this
requirement is not at issue in this case, we need not address it.

3
The Supreme Court of the United States has held that probable cause in the context of the plain view
doctrine merely requires that the facts available to the officer would warrant a man of reasonable caution in the
belief' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not
demand any showing that such a belief be correct or more likely true than false. Brown, 460 U.S. at 742
(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
CONCLUSION
We conclude that the district court did not err in admitting evidence regarding Luster's
involvement in a kidnapping obtained by police during the execution of a search warrant
relating to a murder investigation because the police had probable cause to associate the
evidence with criminal activity. Accordingly, we affirm the judgment of the district court.
___________
115 Nev. 436, 436 (1999) State v. Stu's Bail Bonds
THE STATE OF NEVADA, Appellant, v. STU'S BAIL BONDS, Respondent.
No. 32865
December 28, 1999 991 P.2d 469
Appeal from an order of the district court granting respondent's motion to exonerate a bail
bond. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant's bail bond surety moved to exonerate bail bond from forfeiture by state,
claiming that defendant had absconded to Mexico and could not be retrieved to appear at his
sentencing hearing. The district court granted surety's motion, and state appealed. The
supreme court held that surety was not entitled to exoneration of bail bond.
Richard A. Gammick, District Attorney, David L. Watts-Vial, Deputy District Attorney,
Stu's Bail Bonds, Incline Village, Respondent.
1

1. Bail.
Once the requirements of bail exoneration statute are met, the decision to grant exoneration of a bail bond
rests within the discretion of the district court. NRS 178.509(1), (2).
2. Criminal Law.
Supreme court reviews the construction of a statute de novo.
__________

1
Respondent Stu's Bail Bonds is not represented by counsel on appeal. We note that business entities are not
permitted to appear, or file documents, in proper person. See Salman v. Newell, 110 Nev. 1333, 885 P.2d 607
(1994). For this reason, this court ordered respondent to obtain counsel and cause counsel to file a notice of
appearance with this court; respondent failed to comply with the order. Accordingly, on January 20, 1999, this
court ordered that this matter stand submitted for decision based upon appellant's opening brief and appendix,
and other documents on file.
3. Statutes.
The words of a statute should be given their plain meaning unless this violates the spirit of the act.
Furthermore, a court should presume that the legislature intended to use words in their usual and natural
meaning.
4. Bail.
Statute providing for exoneration of bail bond if defendant is being detained by civil or military authorities did not apply after
defendant absconded to Mexico, despite surety's claim that treaty between United States and Mexico and concomitant Mexican policy
against extradition prevented it from lawfully retrieving defendant for sentencing, where it appeared defendant voluntarily chose to
remain in Mexico to avoid criminal conviction in United States. NRS 178.509(1), (2).
5. Bail.
Surety was not entitled to exoneration of defendant's bail bond, even though surety alleged that through no fault of its own it was
legally prevented from retrieving defendant to appear at his sentencing hearing due to defendant absconding to Mexico, because lack of
fault on surety's part was not separate ground to exonerate bail under statute providing for exoneration of bond under certain
conditions. Instead, statute embodied legislative intent that defendant's non-appearance could only be excused by death, illness,
insanity or civil or military detention. NRS 178.509.
6. Courts.
Equity is one consideration in making discretionary decisions.
OPINION
Per Curiam:
This appeal challenges an order of the district court granting respondent's motion to exonerate a bail bond. The district court
exonerated the bail bond on the ground that a defendant who has fled to a foreign country and cannot be legally retrieved is detained by
civil or military authorities within the purview of NRS 178.509. Having reviewed the record, we conclude that the district court erred.
On October 17, 1997, the criminal defendant in the underlying matter was charged with conspiracy to commit grand larceny. He
pleaded guilty to the offense and was released on bail. When the defendant failed to appear at his sentencing hearing, the district court
mailed a notice of intent to forfeit the bail bond to the surety, respondent Stu's Bail Bonds.
On June 3, 1998, Stu's Bail Bonds moved to exonerate the bail bond on the ground that the defendant had absconded to Mexico and
could not be retrieved. Specifically, Stu's Bail Bonds alleged that a treaty between the United States and Mexico, and a concomitant
Mexican policy against the extradition of its nationals, prevented it from lawfully retrieving the defendant.
prevented it from lawfully retrieving the defendant. Thus, Stu's Bail Bonds argued that the
existence of the treaty was analogous to a civil detention of the defendant under NRS
178.509, and that the circumstances warranted an exoneration of the bail bond.
The district court granted the motion to exonerate the bail bond, concluding that the treaty
made it impossible for Stu's Bail Bonds to legally restore the defendant to custody and that
this impossibility satisfied the requirements of NRS 178.509(1)(b)(4).
2
We conclude that
this reasoning was in error.
[Headnote 1]
In Nevada, the exoneration of a bail bond is governed by statute:
1. The court shall not exonerate the surety before the expiration of 180 days after
mailing the notice of intent to forfeit unless:
(a) The defendant appears before the court . . . or
(b) The surety submits an application for exoneration on the ground that the defendant
is unable to appear because:
(1) He is dead;
(2) He is ill;
(3) He is insane; or
(4) He is being detained by civil or military authorities, and the court . . .
determines that one or more of the grounds described in this paragraph exist and that
the surety did not in any way cause or aid the absence of the defendant.
2. If the requirements of subsection 1 are met, the court may exonerate the surety
upon such terms as may be just.
NRS 178.509(1)-(2) (1991) (emphasis added).
3
Once the requirements of NRS 178.509(1)
are met, the decision to grant exoneration of a bail bond rests within the discretion of the
district court. See NRS 178.509(2); State of Nevada v. American Bankers Ins., 106 Nev. 880,
802 P.2d 1276 (1990).
[Headnotes 2, 3]
This court reviews the construction of a statute de novo. County of Clark v. Upchurch, 114
Nev. 749, 753, 961 P.2d 754, 757 {199S).
__________

2
We note that appellant, the State of Nevada, originally disputed the applicability of the treaty to this case;
however, it concedes on appeal that Stu's Bail Bonds cannot legally retrieve the defendant from Mexico.

3
This appeal is subject to the provisions of NRS 178.509 prior to the 1999 amendment. See 1999 Nev. Stat.,
ch. 389, 4, at 1846. The recent changes are not applicable to this appeal, which arose in 1998, but we observe
that we would reach the same result under the amended statute.
of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998). The words of a statute
should be given their plain meaning unless this violates the spirit of the act. McKay v. Bd. of
Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). Furthermore, a court should
presume that the legislature intended to use words in their usual and natural meaning.
Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 (1997) (the plain
meaning of a statute's words are presumed to reflect the legislature's intent).
[Headnote 4]
The issue before this court is whether the district court correctly interpreted NRS
178.509(1)(b)(4) to include the situation posed by this appeal, where Stu's Bail Bonds was
barred from lawfully retrieving a defendant who absconded to Mexico. The phrase being
detained by civil or military authorities is not defined in NRS chapter 178, but its meaning is
not difficult to decipher. The provision plainly speaks to circumstances where the defendant
is in the custody or detention of some civil or military authority. More technically, the term
detain is defined as to hold or keep in or as if in custody or to restrain esp[ecially] from
proceeding: STOP. Webster's Ninth New Collegiate Dictionary 345 (9th ed. 1983). Under
this definition, we conclude that it is both inaccurate and unfounded to assert that the United
States/Mexico treaty or the Mexican government is detaining the defendant. To the
contrary, it appears that the defendant voluntarily chooses to remain in Mexico, most likely to
avoid a criminal conviction in the United States. Although Stu's Bail Bonds essentially
argued in the district court that the statute also applies where the surety is effectively
detained from retrieving the defendant, the statute does not support this interpretation.
[Headnotes 5, 6]
Stu's Bail Bonds also argued in the district court that it would be unfair to forfeit the bail
bond when the surety, through no fault of its own, is legally prevented from retrieving the
defendant. Although the state aptly countered that the very nature of a surety's business is to
evaluate and assume the risk of a defendant's non-appearance, the district court appears to
have been persuaded by Stu's Bail Bonds' argument. We agree that equity is one consideration
in making discretionary decisions. However, NRS 178.509 does not provide that the lack of
fault on a surety's part is a separate ground to exonerate a bail bond; instead, the statute
embodies the legislative intent that the defendant's non-appearance may be excused only by
death, illness, insanity, or civil or military detention.
civil or military detention.
4
In the absence of a valid statutory ground under NRS
178.509(1), the district court lacked in the first instance the discretion to exonerate the bail
bond. See NRS 178.509(2).
We are cognizant of the comparison drawn by the district court between a civil detention
of the defendant and Stu's Bail Bonds' legal inability to forcibly remove the defendant from
Mexico, but we decline to read into the plain meaning of NRS 178.509(1)(b)(4) such an
expansive and liberal interpretation. Indeed, to allow such a construction would permit
sureties to circumvent the specific requirements of NRS 178.509 as they exist. We instead
leave to the legislature's sound discretion any decision to broaden Nevada's bail bond
exoneration statute. Accordingly, the district court erred when it granted Stu's Bail Bonds'
motion to exonerate the bail bond, and we hereby reverse the district court's order and remand
this matter for further proceedings consistent with this opinion.
____________
115 Nev. 440, 440 (1999) Barajas v. State
RAUL BARAJAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33649
December 29, 1999 991 P.2d 474
Appeal from an order of the district court denying appellant's post-conviction motion to
withdraw a guilty plea. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Following entry of guilty plea charge of possession of a controlled substance, defendant
moved to set aside plea on ground that plea was involuntary. The district court denied motion,
and defendant appealed. The supreme court held that: (1) failure of trial court to advise
defendant of possible immigration consequences of guilty plea did not render plea
involuntary, and (2) defense counsel's failure to advise defendant of possible immigration
consequences of guilty plea did rise to level of ineffective assistance of counsel.
Affirmed.
Kelly & Sullivan, Ltd., Las Vegas, for Appellant.
__________

4
The recent amendment to NRS 178.509 added deportation of the defendant as a fifth basis for exoneration.
See 1999 Nev. Stat., ch. 389, 4, at 1846.
L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
A guilty plea is presumptively valid, and the defendant has the burden to prove that the plea was not
entered knowingly or voluntarily.
2. Criminal Law.
Where a defendant moves to withdraw a guilty plea, the district court has the duty to review the entire record and determine
whether the plea was valid under the totality of circumstances.
3. Criminal Law.
The supreme court will not overturn the lower court's decision on a motion to withdraw a guilty plea absent a clear showing of an
abuse of discretion.
4. Criminal Law.
The possibility of deportation of the defendant is a collateral consequence which does not affect the voluntariness of a guilty plea.
5. Criminal Law.
A trial court's failure to advise a defendant of the possible immigration consequences of a guilty plea does not render the plea
involuntary.
6. Criminal Law.
Defense counsel's failure to advise the defendant of the possible immigration consequences of a guilty plea does not fall below an
objective standard of reasonableness and, thus, does not rise to the level of ineffective assistance of counsel. U.S. Const. amend. 6.
OPINION
Per Curiam:
FACTS
On March 31, 1997, appellant Raul Barajas, a lawful permanent resident alien who had lived in the United States for approximately
thirty-seven (37) years, pleaded guilty to possession of a controlled substance, a felony. On September 30, 1997, the district court sentenced
Barajas to a maximum term of thirty-two (32) months with a minimum parole eligibility of twelve (12) months. The court suspended the
sentence and placed Barajas on probation for an indeterminate period of time not to exceed four (4) years. At some point thereafter, the
Immigration and Naturalization Service (INS) instituted removal (i.e., deportation) proceedings against Barajas based on this conviction.
See 8 U.S.C. 1227(a)(2)(B)(i).
On November 28, 1998, Barajas filed a motion to withdraw his guilty plea pursuant to NRS 176.165. Barajas claimed that his plea was
not entered knowingly and intelligently because neither the district court nor counsel advised him that he would be subject
to deportation as a result of the conviction.
the district court nor counsel advised him that he would be subject to deportation as a result
of the conviction. Barajas further claimed that the failure to so advise him constituted
manifest injustice as he would not have pleaded guilty had he been made aware of the
consequences of his plea.
Following a hearing, the district court denied Barajas' motion. Barajas filed this timely
appeal.
DISCUSSION
Barajas contends that the district court abused its discretion by denying his motion to
withdraw his guilty plea. In particular, Barajas contends that his plea was not entered
knowingly and voluntarily and resulted in a manifest injustice because neither the district
court nor his trial attorney advised him of the possible immigration consequences of his guilty
plea. We conclude that both contentions lack merit.
[Headnotes 13]
A guilty plea is presumptively valid, and the defendant has the burden to prove that
the plea was not entered knowingly or voluntarily. Bryant v. State, 102 Nev. 268, 272, 721
P.2d 364, 368 (1986). The district court has the duty to review the entire record and
determine whether the plea was valid under the totality of circumstances. Id. This court will
not overturn the lower court's decision absent a clear showing of an abuse of discretion. Id.
[Headnotes 46]
The possibility of deportation is a collateral consequence which does not affect the
voluntariness of a plea. Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976); State v.
McFadden, 884 P.2d 1303, 1304-05 (Utah Ct. App. 1994). Therefore, the trial court's failure
to advise a defendant of the possible immigration consequences of a guilty plea does not
render the plea involuntary. United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.
1988); Fruchtman, 531 F.2d at 949; McFadden, 884 P.2d at 1304-05. Similarly, trial
counsel's failure to provide such information does not fall below an objective standard of
reasonableness and, thus, does not rise to the level of ineffective assistance of counsel.
1

__________

1
We acknowledge that some federal courts have recognized one exception to this general rule where counsel
affirmatively, but erroneously, represents that the accused will not be subject to deportation. See, e.g.,
Downs-Morgan v. United States, 765 F.2d 1534, 1540-41 (11th Cir. 1985); United States v. Corona-Maldonado,
46 F. Supp. 2d 1171, 1173 (D. Kan. 1999); United States v. Nagaro-Garbin, 653 F. Supp. 586 (E.D. Mich.
1987). Because Barajas has not claimed that his trial counsel affirmatively misinformed him regarding the
possible immigration consequences of his guilty plea, we need not decide whether to adopt this exception to the
general rule.
United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). We therefore conclude that
appellant's contentions lack merit and we affirm the district court's order denying appellant's
motion to withdraw his guilty plea.
2

____________
115 Nev. 443, 443 (1999) Goodson v. State
BOB GOODSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32701
December 29, 1999 991 P.2d 472
Appeal from a judgment of conviction, pursuant to a jury verdict, of one felony count of
driving while under the influence of alcohol. Fourth Judicial District Court, Elko County;
Jack B. Ames, Judge.
Defendant was convicted in the district court of felony count of driving while under the
influence of alcohol (DUI), and he appealed. The supreme court held that defendant's prior
misdemeanor DUI trial before nonlawyer justice of the peace violated neither federal nor state
constitutional due process or right to counsel guarantees.
Affirmed.
Law Offices of Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, and Robert J. Lowe, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
The supreme court requires the state to show that the spirit of constitutional principles was respected in
the prior misdemeanor proceedings before the record of the prior misdemeanor may be used for enhancement
purposes.
2. Criminal Law.
Defendant's prior misdemeanor driving while under the influence of alcohol (DUI) trial before nonlawyer justice of the peace
violated neither federal nor state constitutional due process or right to counsel guarantees, and thus that prior conviction could be used
to enhance current misdemeanor DUI conviction to felony. U.S. Const. amends. 5, 6, 14.
__________

2
To the extent that appellant contends that the plea colloquy indicates that he was equivocal in admitting his
guilt and that the guilty plea is involuntary for this reason, we conclude that this contention also lacks merit.
OPINION
1

Per Curiam:
Appellant Bob Goodson was convicted of a felony count of driving while under the
influence of alcohol (DUI). His conviction was enhanced to a felony based in part on a prior
misdemeanor DUI conviction which resulted from a trial before a nonlawyer justice of the
peace. Goodson contends that that trial violated the spirit of constitutional principles and the
resulting conviction was therefore invalid for enhancement purposes.
FACTS
In the early morning on August 2, 1997, Deputy Sheriff Carl W. Cox, Jr., observed a
vehicle traveling north on State Route 227 toward Elko. The vehicle crossed the fog line by at
least a foot and travelled that way for about 100 yards. The deputy stopped the vehicle and
administered field sobriety tests to the driver, Goodson. Goodson failed the tests and was
arrested. Two breath tests were administered to Goodson at the sheriff's office, and the results
showed that he had a blood alcohol content of .11 percent.
Goodson was charged with felony DUI. Before trial, he moved the district court to declare
unconstitutional one of his prior DUI convictions, a 1997 misdemeanor conviction in the
Elko Township Justice Court. The court eventually denied the motion.
Goodson was tried in May 1998, and the jury found him guilty. The district court entered
judgment accordingly, sentencing him to twelve to thirty months in prison and fining him
$2,000.00.
DISCUSSION
[Headnotes 1, 2]
Goodson asserts that his misdemeanor DUI trial before a nonlawyer justice of the peace in
1997 violated the spirit of constitutional principles and therefore that the resulting conviction
was invalid for enhancement purposes. This court requires the state to show that the spirit of
constitutional principles was respected in the prior misdemeanor proceedings before the
record of the prior misdemeanor may be used for enhancement purposes."
__________

1
We originally dismissed this appeal in an unpublished order on August 18, 1999. On October 21, 1999, the
state filed a motion to publish the order. Cause appearing, we grant the state's motion and publish this opinion in
place of our prior unpublished order.
misdemeanor may be used for enhancement purposes. Dressler v. State, 107 Nev. 686, 697,
819 P.2d 1288, 1295 (1991). The state does not dispute Goodson's assertion that the Elko
justice of the peace who found him guilty of misdemeanor DUI in 1997 was not a lawyer, nor
does Goodson claim that any error occurred in the 1997 proceeding.
The Nevada Constitution provides that the legislature shall determine the qualifications of
justices of the peace and how appeals may be taken from the justice courts. Nev. Const. art. 6,
8. The legislature has decided that justices of the peace in rural areas and municipal judges
need not be lawyers. See NRS 4.010(2); NRS 5.020. However, justices of the peace and
municipal judges are required to receive instruction in court procedure and substantive law
after they take office and in developments in the law approximately once each year. NRS
4.035-.036; NRS 5.025-.026. A criminal defendant may appeal from a judgment in the justice
court to the district court, where the appeal is judged on the record. NRS 189.010; NRS
189.050; see also NRS 177.015(1)(a). District courts have final appellate jurisdiction in
cases arising in Justices Courts and such other inferior tribunals as may be established by
law. Nev. Const. art. 6, 6, cl. 1.
Jurisdictions have split in deciding the issue raised by Goodson. Some state courts have
concluded that permitting nonlawyer judges to preside over criminal trials for offenses
punishable by jail sentences may violate due process and, in some cases, the right to counsel.
See, e.g., Gordon v. Justice Court for Yuba J. D. of Sutter Cty., 525 P.2d 72, 75-79 (Cal.
1974); In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 332 N.E.2d 97 (Ind.
1975). Other courts have held that judges presiding over criminal trials in courts of limited
jurisdiction need not be attorneys. See, e.g., People v. Sabri, 362 N.E.2d 739, 741-44 (Ill.
App. Ct. 1977); Ex Parte Ross, 522 S.W.2d 214, 219-20 (Tex. Crim. App. 1975); State ex rel.
Moats v. Janco, 180 S.E.2d 74, 77-78 (W. Va. 1971). The Florida Supreme Court took an
intermediate position, holding that judges presiding over criminal misdemeanor trials need
not be attorneys but need to have completed an extensive program in legal education.
Treiman v. State ex rel. Miner, 343 So. 2d 819 (Fla. 1977).
The United States Supreme Court has addressed whether an accused, subject to possible
imprisonment, is denied due process when tried before a nonlawyer police court judge with a
later trial de novo available. North v. Russell, 427 U.S. 328, 329 (1976). The Court held that
such a trial violates neither the due process or equal protection guarantees of the
Constitution of the United States."
or equal protection guarantees of the Constitution of the United States. Id. at 339.
North left open the question whether such a trial is constitutional absent the availability of
a trial de novo on appeal. See id. at 334. However, we doubt that the Supreme Court would
deem it a violation of due process. The Court in North quoted from Shadwick v. City of
Tampa, 407 U.S. 345, 353-54 (1972): [O]ur federal system warns of converting desirable
practice into constitutional commandment. It recognizes in plural and diverse state activities
one key to national innovation and vitality. States are entitled to some flexibility and leeway .
. . .' Id. at 338 n.6. More recently, the Court has stated:
Of course, most questions concerning a judge's qualifications to hear a case are not
constitutional ones, because the Due Process Clause of the Fourteenth Amendment
establishes a constitutional floor, not a uniform standard. Instead, these questions are, in
most cases, answered by common law, statute, or the professional standards of the
bench and bar. But the floor established by the Due Process Clause clearly requires a
fair trial in a fair tribunal, Withrow v. Larkin, 421 U.S. 35, 46 (1975), before a judge
with no actual bias against the defendant or interest in the outcome of his particular
case.
Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (citations omitted).
We therefore conclude that it is not a matter of federal constitutional concern whether
Nevada justices of the peace who preside over criminal trials are attorneys. We also conclude
that the Nevada Constitution is not offended by this practice.
In a 1987 decision holding that DUI defendants in municipal courts have no right to a jury
trial, this court expressed great satisfaction with Nevada's cadre of lay judges and discussed at
length the need for and advantages of such judges. Blanton v. North Las Vegas Mun. Ct., 103
Nev. 623, 635-36, 748 P.2d 494, 502 (1987), aff'd, 489 U.S. 538 (1989). That discussion
applies as well to this case and the issue before us.
CONCLUSION
We conclude that it is constitutional for nonlawyer justices of the peace, instructed
pursuant to statutory mandates, to preside over criminal misdemeanor trials.
over criminal misdemeanor trials.
2
We therefore affirm the judgment of conviction.
__________

2
Goodson raises two other contentions which we reject. First, he maintains that the district court erred in not
striking venire members exposed to a newspaper report on his case. A district court must employ adequate
procedural safeguards against the possible prejudicial effect of news accounts to protect a defendant's right to a
fair and impartial jury trial. Crowe v. State, 84 Nev. 358, 363-64, 441 P.2d 90, 93 (1968). The court has large
discretion in ruling on the issue of possible prejudice resulting from such accounts. Id. We conclude that the
district court provided adequate safeguards in this case. See also NRS 16.050(1)(f); Snow v. State, 101 Nev.
439, 445-46, 705 P.2d 632, 637-38 (1985).
Goodson also objects on several grounds to the admission of a transcript of an audio recording of statements
he made during the traffic stop in this case. The transcript was admitted under NRS 51.035(3)(a), which
provides that a party's own statement offered against the party is not hearsay, after the district court received
uncontroverted evidence that it was a fair and accurate transcription of the audio recording. Goodson did not
clearly raise any of his objections with the district court, and none reflect plain or constitutional error which we
will consider on appeal. See Walch v. State, 112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996).
____________

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