Harmful Error

First, the criminal case:
Mclellan v. State - the Court addresses the admissibility of a wiretapped phone call placed by California police to a defendant in Nevada and the instruction to be given for admission of prior bad act evidence. In an en banc opinion, authored by Justice Cherry, the Court affirms the defendant's conviction for 22 counts of sexual assault of a minor and 20 counts of lewdness.

The State alleged that the first incident occurred in California and then several incidents between the defendant and his step-daughter occurred in Clark County. Eventually, after the defendant and the child's wife divorced, the child moved to California and stated that the defendant had sexually abused her. With the child's consent, and the consent of her guardians, California police officers taped a telephone call between the child and the defendant. The defendant was charged in Nevada and the telephone call was played during his trial. Had the telephone conversation taken place entirely within Nevada it would not have been admissible as Nevada requires two-party consent. California, however, requires only one party consent. The Court concludes that pursuant to NRS 48.077, which allows the admission of the contents of any communication lawfully intercepted under the laws of another jurisdiction, if the interception took place in that jurisdiction, the recording was admissible as it was permitted by California law. The Court notes that the California law enforcement officers did not act as an agent of Nevada law inforcement or with the intent to use the recordings in Nevada.

The Court also clarifies its prior opinion in Tavares v. State by holding that a defendant may waive the giving of a limiting instruction when bad act evidence is admitted at trial. The waiver must be explicit and must be made prior to introduction of the evidence. The Court finds that the district court's failure to give a limiting instruction at the time the evidence was offered here was harmless error.

As for civil cases, the Nevada Supreme Court issued a corrective opinion today, which replaces an opinion of the same name filed February 28, 2008:
Loomis v. Whitehead - "In this appeal, we address whether NRS 602.070 bars the partners of an unregistered fictitious name partnership from bringing an action arising out of a business agreement that was not made under the fictitious name. NRS 602.070 prohibits persons who fail to file an assumed or fictitious name certificate from suing on any contract or agreement made under the assumed or fictitious name. We conclude that NRS 602.070 does not bar the partners from bringing the action so long as the partners did not conduct the business or enter into an agreement under the fictitious name or otherwise mislead the other party into thinking that he was doing business with some entity other than the partners themselves."

The Court also issued new opinions:

Johanson v. District Court - "This original petition for a writ of mandamus or prohibition challenges a district court order sealing the entire case file and the issuance of a gag order, sua sponte, restricting all parties and their attorneys from discussing the case with the public. In this petition, we consider whether the district court manifestly abused its discretion when it ordered the entire case file sealed, without making any findings under NRS 125.110, and prohibited all communication relating to the case, without providing notice or a meaningful opportunity to be heard.
We conclude that by failing to comply with NRS 125.110 when it sealed the entire case file, the district court manifestly abused its discretion. We also conclude that the district court manifestly abused its discretion when it, sua sponte, issued a gag order prohibiting all communication relating to the case, without providing reasonable notice that it was considering such a restrictive order. Gag orders may be issued only when: (1) the activity poses a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) no less restrictive means are available. Because here, these requirements were not met, and for the reasons stated below, we grant this petition for extraordinary writ relief."

Father & Sons v. Transp. Servs. Auth. - "NRS Chapter 706 defines fully regulated common motor carriers as including persons who hold themselves out to the public as willing to be employed to transport household goods by vehicle within Nevada. Nevada law further defines the 'transportation of household goods' as including the movement of such household goods by use of a rented vehicle that is driven by someone associated with an entity that has a commercial or financial interest in providing services related to the movement of those goods.
Based on these statutory definitions, we conclude that a company that is financially interested in providing extended referral services to the public to facilitate intrastate moves through individuals who are paid to load, drive, and unpack vehicles containing household goods may qualify as a fully regulated common motor carrier even though the company itself does not physically move the goods."

The Court has issued 25 opinions this year. The next opinion release day is Thursday, May 8.