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Final published decisions for the year

The Nevada Supreme Court issued 14 published opinions today. Links to all of the decisions are provided on the Court's website.

In Santana v. State, the Court reversed a conviction based upon the district court's failure to correctly instruct the jury on the reasonable person standard for the offense of felony coercion. Justice Rose authored a concurring opinion in which he concluded that the defendant's 19 life sentences, 5 of which were without parole, were excessive. Justice Rose expressed his disagreement with the Court's general failure to review sentences for excessiveness.

Lioce v. Cohen is a civil case but it is well worth review for those raising issues of prosecutorial misconduct in closing argument.

In Thomas v. State, the Court affirms a sentence of death that was entered following a second penalty hearing. The Court held that Crawford v. Washington and the Confrontation Clause do not apply in capital penalty hearings. It emphasized that "other matter" evidence is not admissible for the eligibility determination and that if the State introduces evidence to counter mitigation evidence presented by the defendant that the evidence must be specific to the mitigation presented. The Court disapproved of a prosecutor's argument that mitigation factors must be a cause of the crime in order to be considered, but the Court found the argument to be harmless. It next found that the district court did not abuse its discretion in allowing 10 prison officials to testify for the State because each official testified about a different disciplinary problem. The Court found that a victim's father was not entitled to testify that the defendant was "the lowest form of social sewage," but the Court found the statement to be harmless because there was no indication that the State told the witness to give that testimony and because the witness was promptly admonished. The Court found that the district court did not err in refusing a proposed defense instruction on lack of premeditation as a mitigating circumstances. Although the Court found that lack of premeditation could be a mitigating circumstance, the proposed instruction was not properly framed. The Court next found that the district court did not abuse its discretion in excluding evidence concerning the State's failure to charge the defendant's wife with the offense as such evidence was not proper mitigation. The Court rejected Thomas' arguments concerning the constitutionality of Nevada's death penalty scheme and the unbridled discretion of the DA's office to seek the death penalty. Justices Rose authored a concurring opinion which was joined by Justices Maupin and Douglas. They disagreed with the majority's conclusion that the Confrontation Clause and Crawford do not apply during the penalty hearing of a capital case, but they found that the Confrontation Clause was satisfied here because the witness was unavailable and the defense had a prior opportunity to cross-examine the witness.

In Johnson v. State, the Nevada Supreme Court affirmed four sentences of death following a third penalty hearing. A four-justice majority concluded that Crawford and the Confrontation Clause do not apply in the penalty hearing of a capital case. The Court found that the district court did not abuse its discretion in admitting evidence of juvenile misconduct and offenses during the selection phase of the bifurcated hearing, and noted that because the hearing was bifurcated this evidence did not influence the jury during the eligibility phase. The Court next concluded that the district court did not abuse its discretion in permitting the State to ask "stake-out" position questions during jury selection. The Court did not quote the questions asked or otherwise articulate the meaning of "stake-out" so the meaning of this portion of the opinion is unclear. Next, the Court found prosecutorial misconduct but found the misconduct to be harmless. Specifically, the Court found improper a prosecutor's argument that mitigation evidence presented by the defendant was disrespectful to others who grew up in violent neighborhoods because they did not commit quadruple homicides. The Court found that this was an improper plea to consider community reaction to the verdict. The Court found that the prosecutor violated a district court order to prohibit references to the victims as "kids" and boys," but found that the defendant was not prejudiced by the misconduct. The Court also found that the prosecutor committed misconduct by arguing facts that were not supported by evidence, but again found the misconduct to be harmless. In response to the defendant's argument that the prosecutor committed misconduct in the selection phase by referencing prejudicial matters that were not ultimately supported by the evidence presented, the Court concluded that the prosecutor did not act in bad faith and that the statement was brief and not emphasized. Of note is the fact that the Court found each of the instances of prosecutorial misconduct to be properly preserved, despite the absence of objections at trial, because defense counsel filed a pretrial motion to prohibit prosecutorial misconduct and that motion was addressed before trial. Next, the Court found that the defendant was not prejudiced by the fact that a victim's brother passed out during closing arguments in response to a photo of the crime scene. Finally, the Court concluded that the death sentences were not excessive. Justice Rose authored a concurring opinion, which was joined by Justices Douglas and Maupin, in which they concluded that the Confrontation Clause and Crawford should apply to capital penalty hearings.

In Summers v. State, the Nevada Supreme Court, in a 4-3 decision authored by Justice Hardesty and joined by Justices Becker, Gibbons and Parraguirre, concluded that the Confrontation Clause and Crawford v. Washington do not apply to the penalty phase of a capital case. Justice Rose, in an opinion joined by Justices Douglas and Maupin, dissented on this issue and concluded that testimonial evidence introduced without the benefit of cross-examination should be excluded. The Court also concluded that the district court did not err in failing to dismiss a juror for cause, despite the absence of a motion by defense counsel, based upon the fact that her daughter once dated one of the prosecutors. The Court next concluded that the district court acted properly in controlling a witness during the defense examination, and again noted the absence of a defense objection at trial. The Court also affirmed the district court's denial of a motion for mistrial based upon an allegation of prosecutorial misconduct in the penalty phase and a motion tor mistrial in the guilt phase based upon a witness's unsolicited comment about threats to his life. The Court noted the district court's prompt admonition to the jury regarding the witness's statement. fyi - Summers received a sentence of life without the possibility of parole.

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