Harmful Error

In State v. Lewis, the Court, sitting en banc, dismisses the State's appeal after concluding that the State does not have a right to appeal from an order of the district court granting a presentence motion to withdraw a guilty plea.

In Dozier v. State, the Court sitting en banc with Justices Maupin and Cherry dissenting, affirms the dismissal of a post-conviction petition for a writ of habeas corpus. The Court clarified its prior precedent and concluded that when a defendant is charged with a criminal offense and affirmatively raises a statute-of-limitations defense, if the State seeks to disprove that defense under NRS 171.095(1)(a) by showing that the offense was committed in a secret manner, the State must do so by a preponderance of the evidence. The Court finds that the jury instruction on this issue was proper and rejects a challenge to trial counsel's effectiveness based upon counsel's failure to challenge the instruction.

** Note, Dozier was a proper person appeal that resulted in a published opinion by a divided en banc court. It seems to me that if an issue is worthy of en banc consideration, worthy of a published opinion, and controversial enough that it results in a split decision, that counsel should be appointed to represent the defendant and properly present the issue for the Court's consideration. The Court provides no explanation in its opinion as to why counsel was not appointed in these circumstances.

In Grey v. State, the Court, sitting en banc, addresses two issues: whether parties in a criminal case are required to give notice of expert rebuttal witnesses and whether the State's failure to file an allegation of habitual criminality precludes the district court from imposing an enhanced sentence under NRS 207.010.

As to the expert issue, the Court concludes that the Due Process Clause requires the State to notify a defendant if the State intends to call an expert rebuttal witness. It finds that NRS 174.234 must be read to require reciprocal discovery under Wardius v. Oregon and because a defendant must disclose expert witnesses, the State must also disclose expert rebuttal witnesses. In reaching this conclusion, the Court re-examines its decision in Floyd v. State, which held that disclosure of experts was required by each party for its case in chief. The Court notes that in Floyd, it did not give sufficient consideration to the essential nature of the defendant's case in a criminal case and that the defense's case in chief is most often properly characterized as rebuttal to the State's case in chief. Accordingly, by requiring the defense to give notice of "rebuttal" evidence, but not requiring the State to do the same, NRS 174.234 violates Wardius. The Court finds that it was error not to provide notice in this case but also finds that the constitutional violation does not warrant reversal because there was no objection at trial. In footnote 15, the Court notes "that the reciprocal discovery rule for expert rebuttal witnesses we announce today shall not compel a defendant to disclose incriminating evidence in violation of the Fifth Amendment, e.g. incriminating reports or physical examinations that an expert may have relied upon in forming an opinion.

The Court next finds that the defendant's rights were not violated by the State's refusal to do a blood or urine test, as repeatedly requested by the defendant, because the Court believes that the evidence would not have been material as even a positive test would not have revealed whether the defendant was intoxicated voluntarily or involuntarily. The Court also found that an issue concerning a jury instruction on involuntary intoxication was not preserved for appeal.

Finally, the Court finds that the district court lacked jurisdiction to sentence the defendant as a small habitual criminal under NRS 207.010(1)(a) because the State failed to file a notice of habitual criminality. The Court finds plain error because the notice was not filed with the district court, but was merely faxed to defense counsel.

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Note: I'm still in the jury pool so I'm still not looking at newspapers. News coverage will continue sometime later. In the meantime, Wild Wild Law generally provides good coverage of the Nevada legal news.