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104 Nev.

1, 1 (1988)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 104
____________
104 Nev. 1, 1 (1988) Beeny v. California State Auto Ass'n
RAYMOND MAX BEENY, Appellant, v. CALIFORNIA STATE AUTOMOBILE
ASSOCIATION INTER-INSURANCE BUREAU, an inter-insurance exchange, existing
under the law of California, Respondent.
No. 17607
CHARLES WILLIAMS, Appellant, v. FARMERS INSURANCE EXCHANGE, an
inter-insurance exchange existing under the laws of California, Respondent.
No. 18460
March 30, 1988 752 P.2d 756
Consolidated appeals from two grants of summary judgment. Second Judicial District
Court, Washoe County; William N. Forman, Judge; Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Passengers injured in separate automobile accidents brought separate actions seeking to
stack underinsured motorist and medical benefits of policies issued to drivers of automobiles.
The district courts entered judgment in favor of insurers, and passengers appealed.
104 Nev. 1, 2 (1988) Beeny v. California State Auto Ass'n
district courts entered judgment in favor of insurers, and passengers appealed. The Supreme
Court held that passengers could not stack underinsured motorist benefits and medical
benefits of driver-owners automobile policies.
Affirmed.
Durney & Brennan, Reno, for Appellant Raymond Max Beeny.
Albert D. Massi, Las Vegas, for Appellant Charles Williams.
Beckley, Singleton, DeLanoy, Jemison & List, Daniel F. Polsenberg, and C. Eric Funston,
Las Vegas, for Respondents California State Automobile Association Inter-Insurance Bureau
and Farmers Insurance Exchange.
1. Insurance.
Guest passenger could not stack underinsured motorist and medical coverage benefits of the
owner/drivers' automobile policies.
2. Insurance.
Uninsured motorist coverage of named insured, although contained in her automobile policy, was
personal in nature and not tied to the use of any of her vehicles and, at any given time, under the terms of
her insurance, she was covered against uninsured motorist by all of her policies and was thus entitled to
stack the benefits of those policies if necessary.
OPINION
Per Curiam:
The Facts
On November 21, 1985, a motorist negligently crossed the center line and struck an
automobile owned and driven by Ann Kaiser. Appellant Raymond Beeny, a passenger in
Kaiser's car, was injured by the collision. The motorist causing Beeny's injury was
underinsured. After settling with the tortfeasor for the policy limits of his liability insurance,
Beeny pursued claims for his remaining damages against respondent California State
Automobile Association (hereafter CSAA), which insured Ms. Kaiser and her vehicles.
Kaiser's single policy with CSAA covered four vehicles, including the one that was hit.
She paid four separate premiums for her coverage under this policy. Her policy provided for
$15,000 in uninsured or underinsured motorist (hereafter UM) benefits and $10,000 in
medical payment benefits for injury occurring in any of the four vehicles. Kaiser, her
relatives, and passengers were covered by the policy for injuries caused by an underinsured
motorist while in one of her insured vehicles.
104 Nev. 1, 3 (1988) Beeny v. California State Auto Ass'n
Beeny argued that he was entitled to stack the UM and medical payment coverage on
Kaiser's four vehicles and recover up to $60,000 in UM benefits and $40,000 in medical
benefits. CSAA conceded that the named insured, Kaiser, could stack the coverages under the
policy but argued that guest passengers were not entitled to stack under Kaiser's policy.
According to CSAA's interpretation of its policy, Beeny could only recover up to $15,000 in
UM benefits and up to $10,000 in medical benefits, the policy limits for the vehicle in which
he was injured.
Beeny brought an action and moved for partial summary judgment on the issue of
stacking. CSAA filed a counter-motion for summary judgment on this issue. The lower court
found that CSAA's position was the majority rule of other jurisdictions and that Nevada
would also disallow stacking by guest passengers. It therefore granted CSAA's
counter-motion for summary judgment.
1

Discussion
We have previously held, on several occasions, that a person who purchase a multi-vehicle
insurance policy or several policies may stack the policies' UM coverage. Rando v. Calif. St.
Auto. Ass'n, 100 Nev. 310, 684 P.2d 501 (1984; Allstate Ins. Co. v. Maglish, 94 Nev. 699,
586 P.2d 313 (1978); State Farm Mut. Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d
552 (1972); United Servs. Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970). But we
have not yet considered whether a guest passenger, like a named insured, may stack coverage
when he or she is injured in a vehicle covered by the named insured's multiple vehicle policy.
These consolidated cases present this issue.
[Headnote 1]
After consideration of the relevant provisions of the insurance policies and the arguments
made by the parties, we conclude that Beeny and Williams, as guest passengers, cannot stack
the UM and medical coverage benefits of the owners' insurance policies. Therefore, the
decisions of the lower court are affirmed.
Our decision is based, in part, on the express provisions of the insurance agreements. For
example, Kaiser's CSAA policy provides:
We will pay damages for bodily injury which an insured person is legally entitled to
recover from the owner or operator of an uninsured motor vehicle.
____________________

1
Williams' case involves the identical legal issue and it was also dismissed on summary judgment. In his
situation, the driver of the vehicle had two separate policies, rather than one multi-vehicle policy. However, we
deem this difference insignificant.
104 Nev. 1, 4 (1988) Beeny v. California State Auto Ass'n
. . . .
(1) Insured person or Insured persons means:
(a) You or a relative;
(b) any other person occupying your auto.
2

Under the terms of the policy, we note that two classes of insureds exists. First, the
named insured (and any relative); and second, any other person while occupying an insured
automobile. To be insured, the latter must actually be occupants of an insured vehicle. . . .
This is not true of the named insured. His coverage . . . is not tied to or limited by occupancy
of an automobile. Sturdy v. Allied Mut. Ins. Co., 457 P.2d 34, 40 (Kan. 1969). Courts have
generally labelled these two classes class one insureds and class two insureds.
[Headnote 2]
By the terms of the agreement, Kaiser, as a class one insured, was protected against
uninsured motorists regardless of whether she was in a car, in her house, or on the street. Her
UM coverage, although contained in her automobile insurance policy, is personal in nature
and not tied to use of any of her vehicles.
3
At any given time, under the terms of the
insurance, Kaiser was covered against uninsured motorists by all four of her policies,
4
and
therefore was entitled to stack the UM benefits of these policies, if necessary.
On the other hand, by the very terms of Kaiser's policy, Beeny's UM coverage was tied to
the vehicle he was in. It arose only because he was in a car Kaiser insured. Therefore, his
entitlement to UM benefits, unlike Kaiser's, arose under the terms of the one specific policy
covering the car he occupied.
____________________

2
A similar provision governs medical benefits.

3
As we noted in Rando v. California State Automobile Association, 100 Nev. 310, 315, 684 P.2d 501, 504
(1984), (quoting Emick v. Dairyland Ins. Co., 519 F.2d 1317,1325-26 (4th Cir. 1975)):
[T]he person is the subject of the coverage and it is not relevant that the protection afforded in the form
of uninsured motorist coverage . . . is attached to a policy of motor vehicle liability insurance. . . . [I]t is
precisely the floating, personal accident insurance character of . . . uninsured motorists coverage which
has led courts to ignore the fact that these coverages have been engrafted onto liability policies ensuring
particular cars, and to hold that . . . stacking will be allowed.

4
Although technically, in Beeny's case, only one policy existed, this policy provides When two or more cars
are insured under this policy, the terms of this policy shall apply separately to each. Analytically, this
multi-vehicle policy can be viewed as four separate policies, each covering one vehicle. Therefore, for ease of
explanation, we will discuss Kaiser's multi-vehicle policy as though it were four separate policies. However, the
driver/owner in Williams' case had two separate policies, rather than a multi-vehicle policy, and the individual
nature of the policies is evident without such an analytic construction.
104 Nev. 1, 5 (1988) Beeny v. California State Auto Ass'n
terms of the one specific policy covering the car he occupied. Under the terms of the other
three policies, he was not an insured. Because his coverage arose under only one policy, he
is entitled to the UM benefits of only that policy, and not the policies covering the other
vehicles.
We note that our decision is consistent both with the language of the policy and the
majority of decisions by other state courts. Our research indicates that although only three
states
5
have allowed stacking by guest passengers, at least fourteen other states
6
at this
point have disallowed stacking by guest passengers. In concluding that guest stacking is
impermissible, these fourteen courts have generally considered insurance policies similar to
those now considered by this court.
Our logic in Rando, 100 Nev. 310, 684 P.2d 501, also supports this decision. In Rando,
Stephanie Ritzer-Rando was a class one insured under a three-vehicle CSAA policy. This
policy covered Rando for any injury or death she caused when using another person's vehicle.
Rando killed Williams when using another person's vehicle. Williams' wife sued CSAA,
claiming that Rando's personal injury coverage under the three-vehicle CSAA policy could be
stacked.
In deciding Rando, we distinguished first-person coverage, in which the coverage focuses
on the person of the insured, from third-person coverage, which arises from the use . . . of a
vehicle. 100 Nev. at 314, 684 P.2d at 504. We noted that although first-person coverage
can be stacked, third-person coverage cannot. Id.
Kaiser's UM guest coverage is similar in nature to Rando's personal injury coverage.
____________________

5
Calibuso v. Pacific Ins. Co., 616 P.2d 1367 (Haw. 1980); Barbin v. United States Fidelity and Guar. Co.,
315 So.2d 754 (La. 1975); Kemp v. Allstate Ins. Co., 601 P.2d 20 (Mont. 1979).

6
Moomaw v. State Farm Mut. Auto. Ins. Co., 379 F.Supp. 697 (S.D.W.Va. 1974); Holloway v. Nationwide
Mut. Ins. Co., 376 So.2d 690 (Ala. 1979); American States Ins. Co. v. Kelley, 446 So.2d 1085 (Fla.Dist.Ct.App.
1984); Holland v. Hawkeye Sec. Ins. Co., 230 N.W.2d 517 (Iowa 1975); Sturdy v. Allied Mut. Ins. Co., 457
P.2d 34 (Kan. 1969); Ohio Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky. 1979); Auto-Owners Ins. Co. v.
Traviss, 248 N.W.2d 673 (Mich.Ct.App. 1977); Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732 (Minn.
1986); Hines v. Gov't Employees Ins. Co., 656 S.W.2d 262 (Mo. 1983); Lopez v. Foundation Reserve Ins. Co.
646 P.2d 1230 (N.M. 1982); Babcock v. Adkins, 695 P.2d 1340 (Okla. 1984); Utica Mut. Ins. Co. v.
Contrisciane, 473 A.2d 1005 (Pa. 1984); Cunningham v. Insurance Co., 189 S.E.2d 832 (Va. 1972); Thompson
v. Grange Ins. Assoc., 660 P.2d 307 (Wash.App. 1983). See also 1 A. Widiss, Uninsured and Underinsured
Motorist Insurance 13.11 (2d ed. 1985) (suggests guest passengers should not be allowed to stack).
Some of these cases involve fleet coverage of a large number of vehicles, rather than a coverage of three or
four vehicles as is involved in this case. See, e.g., Stanfield, 581 S.W.2d 555. However, the principles involved
in fleet cases are the same as in this case; the only difference is that the number of vehicles involved is greater.
104 Nev. 1, 6 (1988) Beeny v. California State Auto Ass'n
although first-person coverage can be stacked, third-person coverage cannot. Id.
Kaiser's UM guest coverage is similar in nature to Rando's personal injury coverage.
Beeny's UM coverage arose only because he was a guest in a particular vehicle; Rando's
personal injury coverage arose only because she used a particular vehicle. Both coverages
essentially focus[ed] on a particular vehicle, without which the protection would not exist.
100 Nev. at 315, 684 P.2d at 504. Therefore, the logic behind Rando is consistent with our
present conclusion that guest passengers cannot stack UM coverage of multi-vehicle
insurance policies.
Our decision also produces a fair result. It does not limit Beeny, or any other class two
insureds, to recovery under only the policy of the vehicle they occupy as guests. If they have
their own vehicle policies, they will be covered as class one insureds under the UM
provisions of their policies. Therefore, they can stack their own class one UM coverage with
the additional class two coverage. Were we to allow guests to stack both their own and other's
UM coverages, however, passengers would be allowed the benefits of double stacking,
which, in our opinion, would be an anomalous result.
For the above stated reasons, we affirm the summary judgment in both cases.
____________
104 Nev. 6, 6 (1988) Duckett v. State
TONY DUCKETT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17644
March 30, 1988 752 P.2d 752
Appeal from conviction of two counts of first degree murder and imposition of sentence.
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court of two counts of first degree murder and one
count of burglary, and he appealed. The Supreme Court held that: (1) error in failing to give
alibi instructions was harmless; (2) requiring defendant to wear shackles and jail garb during
sentencing hearing was not abuse of discretion; and (3) defendant was not prejudiced by trial
judge's intervention and comments at trial.
Affirmed.
Morgan D. Harris, Public Defender, Lee A. Gates, Deputy, Susan Deems Roske, Deputy,
Clark County, for Appellant.
104 Nev. 6, 7 (1988) Duckett v. State
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, James
Tufteland, Deputy, and Thomas Moreo, Deputy, Clark County, for Respondent.
1. Criminal Law.
Alibi instructions must be given in criminal prosecution if requested by defendant and if defendant's alibi
theory is supported by evidence.
2. Criminal Law.
Trial court's error in failing to give alibi instruction in homicide and burglary prosecution was harmless
beyond reasonable doubt, in light of overwhelming evidence that defendant committed crime.
3. Criminal Law.
Constitutional foundation for defendant's right to wear normal apparel at guilt-innocence of phase trial no
longer existed at sentencing phase, and public safety concerns had to be accorded greater significance;
therefore, decision concerning necessity for physically restraining defendant at penalty stage of trial had to
be left to sound discretion of trial court. U.S.C.A.Const. Amend. 14.
4. Criminal Law.
Trial court did not abuse its discretion by refusing defendant's request to be free of manacles and prison
garb during sentencing phase of trial; conceivably, after being convicted of two heinous crimes for which
death penalty could have been imposed, defendant might have concluded that he had nothing to lose from
further acts of violence. U.S.C.A.Const. Amend. 14.
5. Criminal Law.
Defendant suffered no prejudice from trial judge's taking active role in soliciting testimony from
witnesses and, commenting to counsel during course of trial; although several comments made during trial
appeared to be inappropriate and judicial questioning of witnesses was overzealous, comments were made,
for most part, outside presence of jury, and questioning appeared to be evenhanded.
OPINION
Per Curiam:
The Facts
At approximately 9:30 p.m. January 31, 1986, Elmo Armstrong and his wife Margaret
were murdered in their home, both repeatedly shot in the head.
1
Their granddaughters
Latosha Armstrong and Ursula Page lived with them and were in the house when their
grandparents were shot. At that time, Latosha was about eighteen years old; Ursula was
nearly sixteen.
Latosha testified that at approximately 9:30, she heard someone knock loudly on the front
door. The front door, usually not used, led to a hallway that provided access to various
bedrooms and the kitchen.
____________________

1
Elmo was shot in the head five times; Margaret seven times. One expert testified that all but one of the
bullets were fired from the same gun.
104 Nev. 6, 8 (1988) Duckett v. State
and the kitchen. Latosha then heard a sound like someone knocking up against the wall.
Curious, she went from the family room to the kitchen. Latosha then heard her grandfather
say, Tony, and her grandmother say, Tony, what are you doing? She suddenly head four
or five shots, followed by her grandmother exclaiming Oh no. God. Oh, no. She then heard
more shots.
Frightened, Latosha ran back into the family room and out the side door. Ursula, who was
in the family room, followed her sister out of the house, running onto a sidewalk. Ursula
testified she then saw a person running in front of my sister, and then I saw my sister, and
then I saw a person run past me and behind her. Both persons were carrying long guns,
apparently rifles. Afraid that her sister would be shot, Ursula screamed. As a result, the
person who ran past her looked over his shoulder at her. Ursula testified that the area was
lighted, and from about seven to ten yards, she recognized this person as Tony Duckett, her
grandfather Elmo's nephew. She testified that she was well acquainted with his appearance
because (1) he was her cousin, and (2) she had seen him many times before this encounter.
Ursula then ran to the neighbor's yard and fainted. When the police came, she told them that
she had seen Duckett running away from her grandparents' house.
Latosha also testified that one month before the murders, Duckett came to the house and
asked his uncle, Elmo, for an advance on his salary. Duckett worked for Elmo. Elmo refused
to give him any money, asked him to leave, and finally hit him in an effort to force him out of
the house.
At trial, Duckett argued that he had been misidentified. He testified that at approximately
8:30 or 8:45 on the evening the murders occurred, he went to Francis Gilkey's home, together
with his brother Kevin and another person named Tony, and stayed there until 10:00 p.m. His
friends, Francis Gilkey and Brenda Montgomery, also testified that on the evening in
question, Duckett was with them at Gilkey's home.
The jury convicted Duckett for one count of burglary and two counts of first-degree
murder, sentencing him to life without the possibility of parole. He appeals these convictions.
Discussion
Duckett presents three important issues for our consideration: (1) whether he was
prejudiced by a failure to give alibi instructions; (2) whether he was prejudiced by being
forced to wear shackles and jail garb during the sentencing hearing, and; (3) whether he was
prejudiced by Judge Goldman's intervention and comments at trial.
104 Nev. 6, 9 (1988) Duckett v. State
Duckett requested the lower court to give the following jury instruction:
The defendant has introduced evidence for the purpose of showing that he was not
present at the time and place of the commission of the alleged offense for which he is
here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that
the defendant was present at the time the crime was committed, he is entitled to an
acquittal.
The lower court refused the proffered alibi instruction.
We have repeatedly held that A defendant in a criminal case is entitled, upon request, to a
jury instruction on his theory of the case so long as there is some evidence, no matter how
weak or incredible, to support it. Roberts v. State, 102 Nev. 170, 172-73 717 P.2d 1115,
1116 (1986). On the other hand, we have noted that a defendant is not entitled to multiple
instructions on the same subject. Wallace v. State, 84 Nev. 603, 605, 447 P.2d 30, 31
(1968). In this case, we are asked to determine whether alibi instructions must be given in
addition to other instructions requiring the State to prove its case beyond a reasonable doubt,
or whether they are an unnecessary reiteration of these other instructions.
[Headnote 1]
Although we have not addressed this exact issue, a number of other courts have. The clear
majority of states require a court to give alibi instructions if (1) there is some evidence to
support the position that defendant was elsewhere when the crime occurred, and (2) the
defendant request the instructions.
2
We agree with the majority view and conclude that,
when requested and supported, alibi instructions should be given.
Although alibi instructions may, to some extent, merely be a reiteration of other
instructions, they are not totally redundant.
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2
E.g., United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984); Carlisle v. State, 356 So.2d 702, 703
(Ala.Crim.App. 1978); Ferguson v. State, 488 P.2d 1032, 1038-39 (Alaska 1971); People v. Ratliff, 715 P.2d
665, 676 (Cal. 1986); Jackson v. State, 374 A.2d 1, 2 (Del. 1977), rev'd on other grounds sub. nom. Tramill v.
State, 425 A.2d 142 (1980); Williams v. State, 395 So.2d 1236, 1238 (Fla. 1981); Hill v. State, 228 S.E.2d 898,
899 (Ga. 1976); Pulley v. State, 382 A.2d 621, 625 (Md. 1978); People v. McGinnis, 262 N.W.2d 669, 671
(Mich. 1978); Young v. State, 451 So.2d 208, 211 (Miss.), cert. denied, 469 U.S. 860 (1984); State v.
Romesburg, 703 S.W.2d 562, 565 (Mo.Ct.App. 1985); People v. Bacon, 446 N.Y.2d 634, 635 (App.Div. 1981);
State v. Hunt, 197 S.E.2d 513, 515 (N.C. 1973); State v. Bridgeman, 366 N.E.2d 1378, 1389 (Ohio 1977),
modified 381 N.E.2d 184 (1978); Goodwin v. State, 654 P.2d 643, 644 (Okla.Crim.App. 1982); State v.
Yielding, 395 P.2d 172, 173 (Or. 1964); Commonwealth v. Brunner, 491 A.2d 150, 152-53 (Pa. 1985); State v.
Robbins, 271 S.E.2d 319, 320 (S.C. 1980); Christian v. State, 555 S.W.2d 863, 864 (Tenn. 1977); Jones v.
State, 398 S.W.2d 753, 754 (Tex. 1966).
104 Nev. 6, 10 (1988) Duckett v. State
For example, alibi instructions may prevent a jury from mistakenly believing that the
defendant has the burden of proving that he was elsewhere, thereby minimizing the prospect
of prejudicial error on the point. Such instructions also remind the jury of the main factual
dispute it must resolve. Finally, alibi instructions are justified under the general rule that a
defendant is entitled to have instructions given on his theory of the case if evidence supports
it.
3
It is preferable, when an alibi defense is asserted, to overclarify the law for the jury's
benefit, rather than take a chance that the jury is mistaken on a crucial point. Therefore, we
conclude that alibi instructions must be given if requested and if defendant's alibi theory is
supported by evidence.
[Headnote 2]
Having concluded that the lower court erred by not giving an alibi instruction, we can
sustain Duckett's conviction only if we can say that the error was harmless beyond a
reasonable doubt. United States v. Hicks, 748 F.2d 854, 858 (4th Cir. 1984). After
consideration of oral argument and the record, we hold that the district court's error was
harmless beyond a reasonable doubt. The State produced overwhelming evidence that
Duckett committed the crime. For example, Ursula Page testified that, from seven to ten
yards away, she saw Duckett running from the murder scene with a rifle. Both Ursula and
Latosha testified that they heard their grandparents call out Tony immediately before the
shootings. And Latosha testified about the altercation, prior to the murder, where Elmo struck
Tony in an effort to get him out of the house. Therefore, despite the error, the conviction
should be affirmed.
[Headnotes 3, 4]
Duckett also argues that, even if the failure to give alibi instructions is not reversible error,
he was deprived of a fair trial, a constitutional right guaranteed by the fourteenth amendment.
His contention is based upon the fact that during the penalty phase of the trial, despite his
counsel's objection, he was compelled to wear jail garb and manacles. He cites Estelle v.
Williams, 425 U.S. 501 (1976), and Elledge v. Dugger, 823 F.2d 1439 (11th Cir.), modified,
833 F.2d 250 (1987), to support his argument.
In Estelle, the United States Supreme Court held the State cannot, consistently with the
Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in
identifiable prison clothes. 425 U.S. at 512; see also Grooms v. State, 96 Nev. 142, 605
P.2d 1145 {19S0).
____________________

3
In Brooks v. State 103 Nev. 611, 747 P.2d 893 (1987), we noted that a defendant was entitled to a theory
of the defense instruction or position instruction that clarifies the law on a crucial issue, even if a positive
instruction about the elements of a crime had also been given.
104 Nev. 6, 11 (1988) Duckett v. State
Nev. 142, 605 P.2d 1145 (1980). The Court so concluded because of the possible
impairment of the presumption [of innocence] so basic to the adversary system. 425 U.S. at
504. The Court, however, was only considering the prejudicial impact of a defendant's attire
during the guilt-innocence phase of the trial; it did not consider whether a defendant has a
similar right during the sentencing phase.
In Elledge, the Eleventh Circuit considered whether a defendant was prejudiced by being
forced to wear shackles during the sentencing phase of a trial. The court concluded that the
Supreme Court's holding in Estelle applied not only to the guilt-innocence phase of the trial,
but also to the sentencing phase of the trial. The court concluded that before shackling a
defendant, a court must consider less restrictive alternatives, and a defendant must be given
an opportunity to challenge a decision to shackle. By its ruling, the court apparently created
a per se rule that requires a state trial judge always to hold a hearing before shackling a
defendant at the sentencing phase of a bifurcated trialeven when no hearing was
requested. 823 F.2d at 1439 (Edmondson, J., dissenting).
After consideration of the arguments advanced in Estelle, Elledge, Elledge v. State, 408
So.2d 1021 (Fla. 1982), vacated and remanded sub nom, Elledge v. Dugger, 823 F.2d 1439
(11th Cir. 1987), and Bowers v. State, 507 A.2d 1072 (Md. 1986), we are convinced the
lower court did not commit reversible error by refusing Duckett's request to be free of
manacles and prison garb during the sentencing phase of the trial.
As noted above, the Supreme Court's holding in Estellethat a defendant has a
constitutional right to wear normal apparel at the guilt-innocence phase of trialwas
designed to protect the presumption of innocence. However, as repeatedly noted, the
presumption no longer applies after a defendant has been convicted. See Elledge v. Dugger,
823 F.2d at 1453 (Edmondson, J., dissenting); Elledge v. Dugger, 833 F.2d 250, 250 (1987)
(Fay, J., dissenting); Elledge v. State, 408 So.2d at 1022-23; Bowers v. State, 507 A.2d at
1081. As a result, at a sentencing hearing, the constitutional foundation for the Estelle right
no longer exists, and public safety concerns must be accorded greater significance. Therefore,
the decision concerning the necessity for physically restraining a defendant at the penalty
stage of the trial must be left to the sound discretion of the trial court. In making this decision,
the trial judge must balance state interestsfor example, in preserving the safety and security
of the courtroomagainst the interest in preventing prejudice to the defendant. Unless an
abuse of discretion is shown, we will not reverse a sentencing verdict on this issue.
104 Nev. 6, 12 (1988) Duckett v. State
Our review of the record convinces us that the district court did not abuse its discretion in
denying Duckett's request to be free of the manacles and jail garb. Duckett, at the sentencing
phase of the trial, stood convicted of the callous, brutal murder of his aunt and uncle.
Conceivably, after being convicted of two heinous crimes for which the death penalty could
have been imposed, Duckett might have concluded that he had nothing to lose from further
acts of violence. The state had an important interest in safeguarding people in the courtroom,
and we cannot say, on review of the record, that this interest was outweighed by any possible
prejudice that might have resulted from the use of manacles. Therefore, abuse of discretion
has not been shown.
4

[Headnote 5]
Finally, Duckett argues that the manner in which the trial judge conducted the trial
deprived him of due process. More specifically, he argues that because of the active role the
judge took in soliciting testimony from witnesses and commenting to counsel during the
course of the trial, the judge tainted the trial atmosphere, ensuring conviction.
It appears the trial judge may have disregarded our counsel in Kinna v. State, 84 Nev. 642,
646-47, 447 P.2d 32, 35 (1968). In Kinna, we noted:
While we are not unmindful of the heavy court calendars of our district courts and the
sincere desire of our trial judges to expedite the disposition of cases pending before
them, the trial judge's conduct in this casehis display of impatience and active
participation during the trial as an advocateconstituted a disregard for the effect such
conduct might have upon the jury, who look to the judge as their guide and guardian.
Firmly embedded in our tradition of evenhanded justiceand indeed its very
cornerstoneis the concept that the trial judge must, at all times, be and remain
impartial. So deeply ingrained is this tradition that it is now well settled that the trial
judge must not only be totally indifferent as between the parties, but he must also give
the appearance of being so.
Harassment of counsel, prejudicial to his clientand this can take many formsmay
require a new trial. The court may not hamper or embarrass counsel in the conduct of the
case by remarks or rulings which prevent counsel from presenting his case effectively or
from obtaining full and fair consideration from the jury.
____________________

4
Because Duckett was convicted and no longer presumed innocent, he had no right to be free of jail garb.
Accordingly, Estelle does not govern, and the lower court did not err by refusing to grant Duckett's request to
wear normal apparel.
104 Nev. 6, 13 (1988) Duckett v. State
Although several of the comments made during Duckett's trial appear, from the record, to be
inappropriate, and although judicial questioning of witnesses was overzealous, we are not
convinced that Duckett was prejudiced thereby. The trial judge solicited testimony from state
and defense witnesses, when both the prosecution and the defense examined, in an apparent
attempt to explore matters he felt needed clarification or to expedite the trial. His questioning
appeared, from the record, to be even-handed. And the allegedly prejudicial comments he
made to defense counsel were, for the most part, outside the presence of the jury. Although
we do not condone the manner in which the trial judge proceeded, we do not perceive
prejudicial error mandating a new trial.
Duckett's remaining argumentsthat the trial court erred by not giving special instructions
on eye-witness identification, and that the trial court wrongly instructed the jury not to be
influenced by sympathywere rejected by this court in Nevius v. State, 101 Nev. 238, 699
P.2d 1053 (1985), and need not be reconsidered.
Having determined appellant's arguments to be without merit, we accordingly affirm the
judgment of the district court.
____________
104 Nev. 13, 13 (1988) Mahan v. State
DANIEL RAY MAHAN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17715
March 30, 1988 752 P.2d 208
Appeal from judgment of conviction of robbery with use of a deadly weapon and battery
with use of a deadly weapon. Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Defendant was convicted in the district court of robbery with use of a deadly weapon and
battery with use of deadly weapon, and he appealed. The Supreme Court held that
prosecutor's comments during rebuttal phase of closing argument concerning fingerprint
evidence constituted misconduct, denying defendant fair trial.
Reversed and remanded.
David Parraguirre, Public Defender, David A. Cass, Deputy Public Defender, Washoe
County, for Appellant.
Brian McKay, Attorney General, Carson City, Mills Lane, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
104 Nev. 13, 14 (1988) Mahan v. State
Criminal Law.
Prosecutor's comments during rebuttal phase of closing argument concerning fingerprint evidence was
misconduct and required reversal of convictions for robbery with use of deadly weapon and battery with
use of deadly weapon; prosecutor argued that it was absolutely false to say that fingerprints taken from
victim's taxicab did not match defendant's, although print comparison showed that prints taken from cab
did not match defendant's.
OPINION
Per Curiam:
Appellant Daniel Ray Mahan was convicted of robbery with use of a deadly weapon and
battery with use of a deadly weapon. On appeal, Mahan contends he was denied a fair trial
due to prosecutorial misconduct. Although we do not agree with Mahan's characterization of
misconduct by the prosecutor, the practical equivalent of misconduct did occur and deprive
Mahan of a fair trial. We therefore reverse and remand for a new trial.
Facts
At approximately 10 p.m. on May 5, 1986, James Kane, a Reno taxicab driver, saw a man
approaching his cab. Kane noticed that the man had red hair, wore a black baseball cap and a
red and white plaid coat, and was carrying a blue vinyl bag. After asking if Kane was free, the
man got in and asked to be driven to a specified location. During the drive, which lasted at
most five minutes, Kane glanced at his passenger two or three times via the rear view mirror.
Upon reaching the requested destination, Kane commenced putting his vehicle in park
when he heard some stirring in the back seat and the sound of a folding knife opening.
Suddenly, Kane noticed a knife coming right for his head. Instinctively, Kane threw up his
arm to defend himself, which resulted in a cut to his wrist. Pulling the knife back, the man
again thrust the knife at Kane who, in an attempt to grab the man's hand, grabbed the knife
blade and suffered a cut palm. The man demanded money and Kane gave him approximately
$59.00. Kane's assailant got out of the cab and fled; his baseball cap was found in the back
seat.
Kane contacted the police and assisted them in compiling a composite drawing of his
assailant. An immediate search of the neighborhood produced no results. On the next day,
Officer Marvin Barnes, a participant in the Kane robbery investigation, was assisting fellow
officers in an entirely unrelated matterexecution of a misdemeanor arrest warrant. While
the person sought was not present at the prescribed address, Barnes noticed that one of
the adult males present, appellant Daniel Ray Mahan, bore a strong resemblance to the
individual in the composite drawing.
104 Nev. 13, 15 (1988) Mahan v. State
sought was not present at the prescribed address, Barnes noticed that one of the adult males
present, appellant Daniel Ray Mahan, bore a strong resemblance to the individual in the
composite drawing.
Kane was shown a photographic lineup containing Mahan's picture and identified Mahan
as the individual who assaulted and robbed him. At trial, a hair comparison expert testified
that hair fibers found on the baseball cap did not match Mahan's hair. Two witnesses testified
that at the time of the robbery, Mahan was at home watching television. A third witness who
lived across the street from Mahan stated that he saw Mahan around 9 p.m.
1
One of the
witnesses, Mahan's mother, also testified that Mahan did not own any red plaid clothes, a blue
vinyl bag or a black cap.
On direct examination, Officer Daniel Tapia testified that fingerprints were taken from
Kane's vehicle and that none of the prints belonged to Mahan. On cross-examination, Tapia
indicated that his conclusions regarding the fingerprints had been deduced from a report.
Defense counsel, noting that he had never seen this report or known of its existence,
immediately asked for a temporary adjournment in order that the report be produced;
however, the prosecutor stated that it was her understanding that no such report existed.
Accordingly, the trial judge ordered the State to produce the report if there was one, and
denied defense counsel's request. Following a noon recess, the prosecutor, during redirect
examination of Tapia, introduced the fingerprint report. Tapia testified that the result of the
report was that no identifiable fingerprints were effected.
During closing argument, defense counsel stated, you also heard . . . that the police . . .
were able to collect some fingerprints. You also heard from the same police officer, No, they
were notthey did not match the prints that Daniel Mahan voluntarily gave.' However,
during her rebuttal, referring to Tapia's statement that no identifications were effected, the
prosecutor told the jury, Now, as to what that means, there is no testimony. So to say that
they did not match is an absolute falsehood. Defense counsel objected, noting that it was
Tapia's testimony that the prints did not match Mahan's. The prosecutor, however, argued to
the court that Officer Tapia had corrected himself on the witness stand, to which the trial
judge replied, That's correct, you're both correct. Thereafter, the prosecutor again addressed
the jury and stated, Now he admitted his mistake. . . . He told you he was mistaken the first
time. And I restate his [defense counsel's] statement that the prints did not match is
absolutely incorrect."
____________________

1
This court, of course, expresses no opinion as to the strength or veracity of the alibi witnesses. The record
does indicate Mahan's alibi, as presented by the three witnesses, may have been discredited by voluntary
statements Mahan made to the police.
104 Nev. 13, 16 (1988) Mahan v. State
restate his [defense counsel's] statement that the prints did not match is absolutely incorrect.
Mahan was convicted of robbery with the use of a deadly weapon and battery with a
deadly weapon. A motion for a new trial was denied. In the hearing on that motion, Officer
David Billau, who filled out the fingerprint report introduced at trial, testified that the term
no identifications were effected means that a fingerprint comparison was made and that the
prints lifted off the cab did not match Mahan's prints.
Discussion
On appeal, Mahan argues that the prosecutor's comments concerning the fingerprint
evidence constitute misconduct denying him a fair trial. In response, the State, while
admitting the prosecutor's comments were wrong (i.e., incorrect), argues that the remarks
should be deemed harmless.
The only real evidence that Mahan committed the battery and robbery was Kane's
eyewitness identification. The fact remains that there was a print comparison made showing
that the prints from the taxicab did not match Mahan's. Despite this fact, the prosecutor,
arguing reasonably from Tapia's restated testimony, mischaracterized the evidence in telling
the jury that it was absolutely false to say that the prints did not match Mahan's. What further
exacerbates the problem created by the prosecutor is that, not only was the fingerprint report
belatedly introduced at trial, but the prosecutor's mischaracterization of the evidence received
the apparent support of the trial judge. Furthermore, although the prosecutor had a reasonable
basis for concluding that Tapia's revised testimony indicated that no identifiable fingerprints
were taken from the cab, nothing in Tapia's testimony constituted an admission of mistake in
his initial testimony. In any event, Officer Billau's post-trial testimony made it clear that his
report intended to reflect that fingerprints were indeed taken from Kane's taxicab and they did
not match those of the defendant, Mahan.
We have noted that improper remarks by a prosecutor will not require reversal if the
evidence supporting the conviction is substantial and the defendant was not prejudiced
thereby. Pickworth v. State, 95 Nev. 547, 550, 598 P.2d 626, 627 (1979). In the instant case,
the evidence convicting Mahan primarily consisted of Kane's eyewitness identification of
Mahan as his assailant. Both the hair analysis and the fingerprint report were exculpatory in
nature. The prosecutor's mischaracterization of the fingerprint evidence occurred during the
rebuttal phase of her closing argument, and defense counsel had no opportunity to respond.
104 Nev. 13, 17 (1988) Mahan v. State
respond. Although the effect of the prosecutor's remarks in depreciating and essentially
neutralizing the fingerprint evidence is speculative, we are persuaded that the comments may
have unfairly or wrongfully influenced the jury in its verdict. Our concerns are magnified in
the instant case because: (1) the evidence convicting the defendant does not appear to be
overwhelming, (2) the prosecutor's mischaracterization of the evidence received the apparent
approval of the trial judge, (3) the prosecutor's erroneous remarks occurred during rebuttal,
and (4) defense counsel had no opportunity to respond. We are therefore not persuaded that
Mahan was fairly convicted. Accordingly, we reverse and remand the case for a new trial.
____________
104 Nev. 17, 17 (1988) Puett v. Western Pacific Railroad
RYON R. PUETT, Appellant, v. WESTERN PACIFIC
RAILROAD COMPANY, a Corporation, Respondent.
No. 17764
March 30, 1988 752 P.2d 213
Appeal from summary judgment. Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Owner of land crossed by railroad right of way brought action claiming a right to a private
vehicular crossing over the right of way. The district court held that: (1) owner was entitled to
license but did not have right to private vehicular crossing, and owner appealed. The Supreme
Court held that owner of servient estate did not have a right to private crossing over right of
way granted by the General Railroad Right of Way Act; (2) such a right could not be acquired
by adverse possession; and (3) as a matter of equity, owner was entitled to a license.
Affirmed.
Wilson and Barrows, Elko, for Appellant.
Woodburn, Wedge, Blakey & Jeppson and Suellen Fulstone, Reno, for Respondent.
1. Public Lands.
Right of way acquired by railroad under the General Railroad Right of Way Act of 1875 was an
easement; at the time of the grant, fee or servient estate remained in the United States. 43 U.S.C.A.
934-939.
2. Railroads.
Owner of servient estate crossed by railroad easement acquired under the General Railroad Right of Way
Act of 1875 could not acquire by adverse possession a right to a private vehicular crossing
over the railroad's right of way.
104 Nev. 17, 18 (1988) Puett v. Western Pacific Railroad
by adverse possession a right to a private vehicular crossing over the railroad's right of way. 43 U.S.C.A.
934-939.
3. Public Lands.
General Railroad Right of Way Act of 1875 was intended to give railroads exclusive use and possession
of the surface right of way granted by the Act. 43 U.S.C.A. 934-939.
4. Railroads.
Railroad's right to exclusive use and possession of right of way granted by General Railroad Right of
Way Act of 1875 does not contain an implied limitation to railroad purposes, permitting servient owner to
use right of way for other, non-railroad uses which do not interfere with the railroad's operation. 43
U.S.C.A. 934-939.
5. Railroads.
As a matter of equity, owner of servient estate crossed by railroad right of way was entitled to a license
for ingress and egress; license would require servient owner to pay for crossing and provide insurance
against risks created thereby.
OPINION
Per Curiam:
Appellant Ryon Puett owns land subject to respondent Railroad's right of way. Puett
contends that as owner of the servient estate, he has a right under the law to a private
vehicular crossing over the Railroad's right of way. The Railroad claims that, pursuant to the
federal act granting its right of way, Congress intended that the railroads have exclusive use
and possession of the surface of the way; consequently, the Railroad contends that the
appropriate remedyboth for Puett and as a matter of equityis for the Railroad to issue a
license to Puett. We agree with the Railroad and therefore affirm the summary judgment.
Facts
Puett owns property located in Section 30, Township 33 North, Range 53 East, just outside
Carlin in Elko County, Nevada. He traces his title to a Desert Land Entry Patent issued by the
United States in 1930 to his predecessors in interest. In 1913 his grandmother, Myrtle Puett,
originally filed an application under the Desert Land Entry Act for Section 30.
Puett's predecessor in interest acquired the property subject to the Western Pacific Railway
Company's right of way (now, by merger, a division of the Union Pacific Railroad Co.,
hereafter Railroad). The Railroad acquired that right of way under the federal General
Railway Right of Way Act of 1875 (codified at 43 U.S.C. 934-39, hereafter 1875 Act).
1
The Railroad does not dispute Puett's contentions that in 1911 the Railroad built a
crossing across its tracks when it traversed the Puett property, and that this crossing was
continually used by him and his predecessors from 1913 to January of 19S5.
____________________

1
The 1875 Act, in pertinent part, provides:
The right of way through the public lands of the United States is hereby granted to any railroad
company duly organized under the laws of
104 Nev. 17, 19 (1988) Puett v. Western Pacific Railroad
not dispute Puett's contentions that in 1911 the Railroad built a crossing across its tracks
when it traversed the Puett property, and that this crossing was continually used by him and
his predecessors from 1913 to January of 1985.
No question was raised about the private use of the crossing until approximately
September, 1982. At the time Puett came into the Railroad office in Elko to request upgrading
of the existing crossing; Puett explained that he wanted to subdivide and develop his property
south of the tracks for the purpose of creating a gravel business. The office, however, could
not find any documentation allowing Puett to use the crossing, and Puett was unable to
proffer any. As a result, the Railroad ordered the crossing removed. Subsequently, Puett made
application for a road crossing at the site. The Railroad sent a licensing form which Puett
rejected.
In November, 1982, Puett filed the instant action alleging his right to an easement for a
grade crossing across the Railroad's right of way. Puett also filed for a preliminary injunction
to restrain the Railroad from interfering with his use of the crossing. However, Puett failed to
pursue his actions and the case was inactive for two years.
In February of 1985, Puett again moved for preliminary injunctive relief; the motion was
denied. In its denial, the district court noted that the Railroad's right of way is an easement in
perpetuity to exclusive use and possession, and that the property was acquired by Puett's
predecessors after the Railroad had acquired its right of way. Consequently, the court
concluded that Puett could not acquire a prescriptive easement against the Railroad. The court
also suggested that Puett's remedy was limited to pursuing the Railroad's offer of a licensing
agreement.
2

In January 1986, Puett filed an action in federal district court (District of Nevada) seeking
similar relief purportedly under a different legal theory: a right to a grade crossing as an
owner of the servient estate to the Railroad's right of way.
____________________
any State or Territory, except the District of Columbia, or by the Congress of the United States, which
shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of
its organization under the same, to the extent of one hundred feet on each side of the central line of said
road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone,
and timber necessary for the construction of said railroad; also ground adjacent to such right of way for
station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in
amount twenty acres for each station, to the extent of one station for each ten miles of its road.
43 U.S.C.A. 934 (West 1986).

2
The Railroad has consistently offered to enter into a licensing agreement with Puett throughout this action.
Puett, however, continues to reject the Railroad's offer.
104 Nev. 17, 20 (1988) Puett v. Western Pacific Railroad
different legal theory: a right to a grade crossing as an owner of the servient estate to the
Railroad's right of way. Subsequently, Puett filed a motion for stay of proceedings in the Elko
court pending a final determination by the federal court; the motion was denied. The Railroad
moved for summary judgment and, pursuant to stipulation of the parties, Puett filed an
amended complaint purportedly dropping all claims to an easement and asserting the theory
proffered in the federal action.
The Railroad's motion for summary judgment was granted. Puett appeals, contending that
as owner of a servient estate, he has a right under the law to a vehicular grade crossing across
the Railroad's right of way as it crosses his property.
Discussion
[Headnotes 1, 2]
The right of way acquired by the Railroad under the 1875 Act is an easement; at the time
of the grant, the fee or servient estate remained in the United States. Great Northern Railway
Co. v. United States, 315 U.S. 262, 271, 276-77 (1941). Thus, in considering whether a right
of way for an irrigation ditch and flume could be acquired by prescription against the right of
way of a railroad (received via the 1875 Act), the Tenth Circuit in Himonas v. Denver &
R.G.W.R. Co., 179 F.2d 171 (10th Cir. 1949), held:
Since the Railroad Company did not own the fee, it could not dedicate or grant any part
thereof, and no right in the servient estate could be acquired by prescription. Neither
could the Railroad Company grant any part of its right of way for private use nor could
adverse interests be acquired in such right of way for private use by prescription.
179 F.2d at 172-73. Following similar reasoning, the Tenth Circuit rejected a claim of
adverse possession by a lumber company to the strips of land on each side of a railroad track.
The court noted that the right of way received by the railroad under the 1875 Act precluded
the lumber company from claiming the strips of land by reason of adverse possession,
abandonment or estoppel. Boise Cascade Corp. v. Union Pac. R. Co., 630 F.2d 720 (10th Cir.
1980).
[Headnote 3]
Puett, acknowledging that a railroad is prohibited from granting easements in its right of
way, dropped all claims to an easement and advanced an alternative theory that as the servient
owner of the land he has a right under the law to a vehicular grade crossing. A review of the
case law supports the Railroad's claim that the 1875 Act intended railroads to have exclusive
use and possession of the surface right of way granted by the act.
104 Nev. 17, 21 (1988) Puett v. Western Pacific Railroad
and possession of the surface right of way granted by the act. Although such a feature
(exclusive use and possession) is not ordinarily associated with an easement as it existed at
common law, the cases interpreting the 1875 Act demonstrate that the easements granted
thereby were not intended to be construed within the traditional definition of an easement.
Indeed, before 1942, the nature of the Railroad's right of way was termed as a limited
fee, See, e.g., Northern Pacific Ry. v. Townsend, 190 U.S. 267, 271 (1903). The Tenth
Circuit explained that term as follows:
The concept of limited fee was no doubt applied in Townsend because under the
common law . . . an easement did not give an exclusive right of possession. With the
expansion of the meaning of easement to include, as far as railroads are concerned, a
right in perpetuity to exclusive use and possession the need for the limited fee label
disappeared.
Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir. 1967) (emphasis added). In Idaho v. Oregon
Short Line R. Co., 617 F.Supp. 207 (D.Idaho 1985), the Idaho federal court set forth in some
detail the history of federal railroad grants and the nature of the rights of way thus acquired.
Again, as noted in Udall, the Short Line court brought attention to the definitional problem
of the right of way granted to the railroads. In describing the efforts in the case law to define
property interest conveyed to a railroad by grant of a right of way, the Short Line court
reflected that the result was a rather unartful coinage of the term limited fee with an implied
condition of reverter,' something of a hybrid between a fee simple interest and a mere
easement interest. 617 F.Supp. at 210. After reviewing the legislative history, statutes and
cases dealing with the rights-of-way granted to railroads,
3
the Idaho court concluded that
Congress, in granting the 1875 Act rights-of-way, did not intend to convey to the
railroads a fee interest in the underlying lands. Congress did, however, intend to give the
railroads an interest suitable for railroad purposesa right-of-way, which, by definition,
carried with it the right to exclusive use and occupancy of the land.
617 F.Supp. at 212.
An analogous situation to the instant case was presented in Denver & S.L. Ry. Co. v.
Pacific Lumber Co., 278 P. 1022 (Colo. 1929). In Pacific Lumber, a lumber company sought
an injunction to keep the railroad from interfering with the lumber company's use of a
crossing where the railroad's tracks passed through the company's patented land; a
mandatory order compelling the railroad to reinstall the removed crossing was also
sought.
____________________

3
This excellent review, which we see no need to duplicate in this opinion, is found at 617 F.Supp. at 210-12.
104 Nev. 17, 22 (1988) Puett v. Western Pacific Railroad
company's use of a crossing where the railroad's tracks passed through the company's
patented land; a mandatory order compelling the railroad to reinstall the removed crossing
was also sought. As in the instant case, the railroad had acquired its right of way via the 1875
Act prior to the lumber company's predecessor in interest acquiring the fee to the property.
On those facts, the Colorado Supreme Court held that the lumber company had no right to a
private crossing, noting that
[S]o long as the defendant railway company maintains its line of road, it has the right of
exclusive use and possession of its right of way.
. . .the owner of the servient estate has no right to occupy the surface of the land
conveyed for right of way, in any mode, or for any purpose, without the railroad
company's consent.
278 P. at 1023-24 (emphasis added).
[Headnote 4]
Puett suggests that, even if the Railroad has the right to exclusive use and possession of its
right of way, exclusive contains an implied limitation to Railroad purposes which in turn
permits the servient owner to use the right of way for other non-railroad uses which do not
interfere with the Railroad's operation. The authorities cited by Puett do not support his claim.
For example, Puett places great reliance on Cincinnati, Hamilton & Dayton Ry. Co. v.
Wachter, 70 N.E. 974 (Ohio 1904). In Wachter, a railroad sought to prevent a landowner
from crossing the railroad's easement. The court held that there was a reserved right of the
estate owner to cross the easement. However, the context of Wachter simply renders it
inapposite to the instant case. Wachter arose out of a private grant of right of way to a
railroad. None of the federal rights of way grants was involved; the issue in Wachter was the
implied reservation in the grantor of a crossing easement. The Wachter court invoked the
common law doctrine of easement by necessity to imply such an easement in the landowner.
The United States Supreme Court has held that this common law doctrine is simply not
applicable to grants from the federal government to the railroads. Leo Sheep Co. v. United
States, 440 U.S. 668, 679-81 (1979).
4
Likewise, in urging this court to accept his theory,
Puett relies on cases which involve the acquisition of public rights to use a railroad's right
of way.
____________________

4
In Leo Sheep, the United States claimed that, when odd-numbered sections of land had been conveyed to the
railroad pursuant to the Union Pacific Act of 1862, it had reserved an implied easement in itself to cross those
sections to secure access to its even numbered sections. The Tenth Circuit agreed. A unanimous Supreme Court
reversed holding that the United States had no implied right either under the 1862 Act, the doctrine of easement
by
104 Nev. 17, 23 (1988) Puett v. Western Pacific Railroad
Likewise, in urging this court to accept his theory, Puett relies on cases which involve the
acquisition of public rights to use a railroad's right of way. As respondent Railroad concedes,
there has never been any question that the right of way granted the private railroad companies
are subject to the states' power of eminent domain.
5
Puett, however, wants to draw the
analogy of public crossings to the exercise of private crossing rights in individuals. There is
no authority supporting Puett's analogy.
Puett also argues that his theory finds support in Energy Transportation Systems, Inc. v.
Pac. R. Co., 435 F.Supp. 313 (D.Wyo. 1977), aff'd, 606 F.2d 934 (10th Cir. 1979). In Energy
Transportation, the fee owner of land (subject to a railroad's right of way) sought the right to
construct an underground coal slurry pipeline which involved crossing the railroad's right of
way beneath the surface. The court held for the landowner. Puett argues that Energy
Transportation stands for a much broader proposition than the right of the servient owner
to use the subsurface estate. We disagree. The court in Energy Transportation clearly limited
its opinion to subsurface rights, noting:
[Energy Transportation] asserts no rights to the surface of the railroad right of way, but
seeks a declaration that the railroad has no right to prohibit [Energy Transportation] from
using the surface at such depth and in such manner as not to interfere with the railroad's
exclusive occupancy and use of the surface right of way.
435 F.Supp. at 317.
[Headnote 5]
Finally, in denying Puett's request for injunctive relief, the district court determined that
Puett's remedy is to pursue the offered license agreement to obtain ingress and egress to his
property. Respondent Railroad suggests that as a matter of equity, the district court was
correct. We agree.
Respondent Railroad has licensed over 14,000 private grade crossings. A license requires
the servient owner to pay for the crossing and provide insurance against the risk created
thereby.
____________________
necessity or the Unlawful Enclosures of Public Lands Act. 440 U.S. at 680-85.
Pursuant to Leo Sheep, the United States retained no right of way as the fee owner of the land; consequently,
neither does Puett possess such a right as the current fee owner.

5
Indeed, in rejecting the idea that the government retained a common-law doctrine of easements by necessity
when granting the railroad right of ways, the Supreme Court in Leo Sheep saw the power of eminent domain as
an obvious device for ameliorating disputes. 440 U.S. at 681.
104 Nev. 17, 24 (1988) Puett v. Western Pacific Railroad
Such an arrangement comports with equity: instead of placing the cost and risk of a private
crossing upon the railroad (to be paid by the traveling public and consumers of goods shipped
by rail), the expense is placed upon the private party who primarily uses and benefits from the
crossing. A ruling in Puett's favor in effect entitles all other current servient owners of land,
along the Railroad's track, to require the Railroad to bear the expense of maintaining and
insuring any private crossings upon those lands; to pose such a financial burden on the
Railroad is unwarranted and inequitable.
In granting railroads a right of way pursuant to the 1875 Act, Congress intended such
railroads to have exclusive use and possession of the surface thereof. Hence, the district court
was correct in ruling that, as owner of the servient estate, Puett does not have a right under
the law to a private vehicular crossing. The appropriate remedy for Puett is a licensing
agreement with the Railroad. Because summary judgment was properly granted, we affirm.
____________
104 Nev. 24, 24 (1988) Whitlock v. Salmon
PHYLLIS WHITLOCK and J. T. WHITLOCK, Appellants, v.
DONALD SALMON, M.D., Respondent.
No. 18043
March 30, 1988 752 P.2d 210
Appeal from judgment and order denying motion for judgment notwithstanding the verdict
and for new trial. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Appeal was taken from order of the district court entered in favor of physician in medical
malpractice action. The Supreme Court held that: (1) although trial judge may reasonably
restrict right of supplemental attorney-conducted voir dire in civil case, he may not prohibit
right altogether, and (2) denying attorneys for both plaintiff and defendant opportunity to
conduct any voir dire examination of jury in medical malpractice action was reversible error.
Reversed and remanded.
[Rehearing denied June 28, 1988]
Crockett & Myers, Las Vegas, for Appellants.
Barker, Gillock, Perry, Koning & Spann, Las Vegas, for Respondent.
104 Nev. 24, 25 (1988) Whitlock v. Salmon
Galatz, Earl, Catalano & Smith, Las Vegas, for Amicus Curiae.
1. Jury.
Although trial judge may reasonably restrict right of supplemental attorney-conducted
voir dire in civil case, he may not prohibit right altogether. NRS 16.030, subd. 6; NRCP
47(a).
2. Appeal and Error; Jury.
Denying attorneys for both plaintiff and defendant opportunity to conduct any voir dire
examination of jury in medical malpractice action was reversible error. NRS 16.030,
subd. 6; NRCP 47(a).
OPINION
Per Curiam:
[Headnote 1]
This case hinges on the question of whether, in a civil case, a trial judge, under Nevada
law, may exclude counsel from participating directly in voir dire of the jury panel.
1
Although
a trial judge may reasonably restrict the right of supplemental attorney-conducted voir dire,
we hold that he may not prohibit the right altogether.
Appellants Phyllis and J. T. Whitlock brought an action against respondent Donald
Salmon, M.D., for personal injuries received by Mrs. Whitlock during surgery for the
removal of a brain tumor. In his pretrial memorandum and his proposed jury voir dire
questions, counsel for the Whitlocks requested permission to voir dire the jury. During the
voir dire process, the requestthis time joined by Dr. Salmon's attorneywas repeated.
Although the trial judge basically presented counsel's questions to the prospective jurors on
voir dire, he did not allow counsel to participate directly in the process. Voir dire was
conducted exclusively by the judge.
The jury returned a defense verdict. On appeal, the Whitlocks contend that the trial judge
committed reversible error in refusing to permit counsel's participation in voir dire. We agree.
NRS 16.030(6) provides:
The judge shall conduct the initial examination of prospective jurors and the parties or
their attorneys are entitled to conduct supplemental examinations which must not be
unreasonably restricted (emphasis added).
This statute appears to be in conflict with NRCP 47(a) which states that the court shall
conduct the examination of prospective jurors and may permit such supplemental
examination by counsel as it deems proper."
____________________

1
A right to attorney-conducted voir dire in criminal cases is granted by NRS 175.031. See Spillers v. State,
84 Nev. 23, 436 P.2d 18 (1968).
104 Nev. 24, 26 (1988) Whitlock v. Salmon
tive jurors and may permit such supplemental examination by counsel as it deems proper.
We have previously held that a trial judge acted within his discretion in refusing to ask certain
questions of prospective jurors proffered by counsel to assist in the intelligent exercise of
peremptory challenges. Frame v. Grisewood, 81 Nev. 114, 121, 399 P.2d 450, 454 (1965).
However, Frame was decided several years before NRS 16.030(6) was enacted. It thus
remains necessary to resolve the apparent conflict between the statute and the rule of court.
The judiciary, of course, has the inherent power to govern its own procedures; and that
power includes the right to adopt and promulgate rules of procedure. See State v. Connery, 99
Nev. 342, 661 P.2d 1298 (1983). We do not perceive the statute as a legislative encroachment
on judicial prerogatives. Although the statute does implicate trial procedure, it does not
interfere with procedure to a point of disruption or attempted abrogation of an existing court
rule. Rather, the statute confers a substantive right to reasonable participation in voir dire by
counsel; and this court will not attempt to abridge or modify a substantive right.
2
NRCP
47(a) contemplated a healthy respect on the part of trial judges for appropriate supplemental
participation by trial counsel in voir dire. Historically, in most of Nevada's courts of general
jurisdiction, counsel have been accorded meaningful opportunities for involvement in the voir
dire of prospective jurors. The Legislature thus saw fit to enthrone the historical practice
selectively enjoyed by counsel in most trial proceedings, in a substantive enactment that
vouchsafes the right to all counsel in every department of our district courts.
3
We
accordingly view the statutory right thus bestowed as an acceptable solidification of the basic
intendment of NRCP 47(a).
____________________

2
NRS 2.120 in pertinent part provides:
1. The supreme court may make rules not inconsistent with the constitution and laws of the state for
its own government, the government of the district courts, and the government of the State Bar of
Nevada.
2. Such rules shall not abridge, enlarge or modify any substantive right and shall not be inconsistent
with the constitution of the State of Nevada.

3
A review of the scant legislative history behind the enactment of NRS 16.030(6) convinces us that there was
no mistake by the Legislature as to the language used in the statute: it gives attorneys a right to conduct
supplemental examination of prospective jurors.
In the second draft of Assembly Bill 257 (the bill enacting NRS 16.030(6)) the Assembly Judiciary
Committee changed the language from may conduct supplemental examinations to are entitled to conduct
supplemental examinations. While the Senate Judiciary Committee expressed concern with the change, a
recommendation to change the language back to may was not followed. See Minutes of the Judiciary
Committee Meeting, 1979 AB 257 (Conduct of examinations of prospective jurors in civil actions).
104 Nev. 24, 27 (1988) Whitlock v. Salmon
Under the federal rule,
4
the decision to allow attorneys to directly examine prospective
jurors is left to the sound discretion of the trial judge. See Canterbury v. Spence, 464 F.2d
772, 796 n. 149 (D.C.Cir. 1972), cert. denied, 409 U.S. 1064 (1972).
5
Even so, the federal
practice has been rejected by a number of states. For example, the Texas courts hold that the
constitutional guarantee of the right to be represented by counsel includes the right to have
counsel interrogate the members of the jury panel. See De La Rosa v. State, 414 S.W.2d 668,
671 (Tex.Crim.App. 1967). A Connecticut statute provides that each party in civil actions
shall have the right to examine, personally or by his counsel, each juror outside the
presence of the other prospective jurors. Conn. Gen. Stat. 51-240(a) (1987). Similarly,
Florida, by court rule, provides that the parties have the right to examine jurors orally on
voir dire. Although the rule allows the court to ask prospective jurors questions, it expressly
provides that the right of the parties to conduct a reasonable voir dire of each juror orally
shall be preserved. Fla. R. Civ. P. 1.431(b) (West 1985).
We concur with those states that reject the federal approach. The importance of a truly
impartial jury, whether the action is criminal or civil, is so basic to our notion of
jurisprudence that its necessity has never really been questioned in this country. United States
v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974). The voir dire process is designed to
ensureto the fullest extent possiblethat an intelligent, alert and impartial jury which will
perform the important duty assigned to it by our judicial system is obtained. De La Rosa v.
State, 414 S.W.2d 668, 671 (Tex.Crim.App. 1967). The purpose of voir dire examination is
to determine whether a prospective juror can and will render a fair and impartial verdict on
the evidence presented and apply the facts, as he or she finds them, to the law given. See
Oliver v. State, 85 Nev. 418, 422, 456 P.2d 431, 434 (1969). We are convinced that
prohibiting attorney-conducted voir dire altogether may seriously impede that objective.
____________________

4
Fed. R. Civ. P. 47(a) which provides:
The court may permit the parties or their attorneys to conduct the examination of prospective jurors or
may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys
to supplement the examination by such further inquiry as it deems proper or shall itself submit to the
prospective jurors such additional questions as it deems proper.

5
Although the trend among the federal courts is for the trial judges to conduct the entire voir dire
examination themselves, at least one federal court has noted its dissatisfaction with the practice because, it is
the parties, rather than the court, who have a full grasp of the nuances and the strength and weaknesses of the
case. Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary
information upon which to base such strikes.' [Citation omitted.] United States v. Ible, 630 F.2d 389, 395 (5th
Cir. 1980).
104 Nev. 24, 28 (1988) Whitlock v. Salmon
convinced that prohibiting attorney-conducted voir dire altogether may seriously impede that
objective.
Usually, trial counsel are more familiar with the facts and nuances of a case and the
personalities involved than the trial judge. Therefore, they are often more able to probe
delicate areas in which prejudice may exit or pursue answers that reveal a possibility of
prejudice. Moreover, while we do not doubt the ability of trial judges to conduct voir dire,
there is concern that on occasion jurors may be less candid when responding with personal
disclosures to a presiding judicial officer.
6
Finally, many trial attorneys develop a sense of
discernment from participation in voir dire that often reveals favor or antagonism among
prospective jurors. The likelihood of perceiving such attitudes is greatly attenuated by a lack
of dialogue between counsel and the individuals who may ultimately judge the merits of the
case. In that regard, we expressly disapprove of any language or inferences in Frame that tend
to minify the importance of counsel's voir dire as a source of enlightenment in the intelligent
exercise of peremptory challenges.
We have said or implied nothing in this opinion that detracts from the absolute right of a
trial judge to reasonably control and limit an attorney's participation in voir dire. Indeed, we
encourage the trial bench not to tolerate the desultory excursions of unprepared counsel who
show little regard for judicial economy. Both the scope of voir dire and the method by which
voir dire is pursued remain within the discretion of the district court. See Summers v. State,
102 Nev. 195, 718 P.2d 676 (1986). The trial judge has a duty to restrict attorney-conducted
voir dire to its permissible scope: obtaining an impartial jury. NRS 16.030(6) clearly
contemplates that the trial judge will supervise the process and that he may reasonably restrict
supplemental examination of prospective jurors by the litigants' counsel.
[Headnote 2]
In the instant case the trial judge denied both attorneys the opportunity to conduct any voir
dire examination. A complete denial of attorney-conducted voir dire cannot be construed as a
reasonable restriction and therefore the trial judge committed reversible error. Accordingly,
we reverse and remand this case for a new trial.
____________________

6
For example, one study suggests that the judge's presence evokes considerable pressure among jurors
toward conforming to a set of perceived judicial standards and that this is minimized when an attorney conducts
voir dire. Jones, Judge-Versus Attorney-Conducted Voir Dire; and Empirical Investigation of Juror Candor, 11
Law and Human Behavior 131, 143-44 (1987).
____________
104 Nev. 29, 29 (1988) Able Electric, Inc. v. Kaufman
ABLE ELECTRIC, INC., Appellant, v. HERBERT KAUFMAN and
JEFFRICK CORPORATION, Respondents.
No. 18236
March 30,1988 752 P.2d 218
Appeal from an order granting a motion for satisfaction of judgment and expungement of
liens and an appeal from an order denying a motion to alter or amend order. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
In applying payments made in partial satisfaction of mechanics' lien judgment, the district
court expunged three liens and left judgment creditor with liens on two worthless leasehold
interests. Judgment creditor filed motion to alter or amend. The court denied motion, and
judgment creditor appealed. The Supreme Court held that: (1) judgment creditor's appeal was
timely when made within thirty days after written notice of denial of motion to alter or
amend, and (2) manner of expungement of liens which was not in best interest of judgment
creditor was error.
Reversed.
Edwin A. Adamson, Las Vegas, for Appellant.
Michael Cherry and Douglas C. Crawford, Las Vegas, for Respondents.
1. Appeal and Error.
Filing of motion to alter or amend within thirty days of date of service of written notice of entry of order
stayed appeal time, and appellant had thirty days from written notice of denial of motion to alter or amend
in which to file notice of appeal NRAP 4(a).
2. Appeal and Error.
Motion to alter or amend order could not be construed as motion for rehearing, where trial court did not
consider any new evidence in arriving at its decision to deny motion and thus motion did toll thirty-day
notice of appeal period. NRAP 4(a).
3. Payment.
When debtor partially satisfies judgment, debtor has right to make appropriation of such payment to
particular obligations outstanding, but such application must be submitted at time payment is made.
4. Payment.
Where no appropriation to particular obligations outstanding is made by debtor concurrent with payment
in partial satisfaction of judgment, right to make such appropriation passes to creditor.
5. Payment.
Once right to make appropriation of payments in partial satisfaction of judgment to particular outstanding
obligations has passed from debtor to creditor, and creditor makes such appropriation, appropriation is
final and payment cannot thereafter be applied to another debt.
104 Nev. 29, 30 (1988) Able Electric, Inc. v. Kaufman
6. Payment.
Creditor's right to appropriate payments made in partial satisfaction of judgment to particular debts
terminates if not already exercised at time controversy regarding such application arises.
7. Payment.
If both debtor and creditor fail to apply payments made in partial satisfaction of judgment to outstanding
lien balances, court is authorized to apply reductions to particular debts.
8. Payment.
In directing application of payment being made in partial satisfaction of judgment to particular
outstanding debt, trial court should be guided by basic principles of justice and equity.
9. Payment.
Equity and justice are best served by disposition that is most favorable to creditor in directing application
of payments made in partial satisfaction of judgment to reduction of particular outstanding debts.
10. Mechanics' Liens.
In applying payments made by judgment debtor in partial satisfaction of judgment to outstanding
mechanics' liens, trial court erred in expunging three liens and leaving judgment creditor with two liens on
worthless leaseholds, inasmuch as reduction of the outstanding liens was not in best interests of lien
creditor.
OPINION
Per Curiam:
Appellant Able Electric, Inc. was hired as the electrical subcontractor to construct
improvements to several of respondent Jeffrick Corporation's leasehold interests located at
the Fashion Show Mall in Clark County, Nevada. A dispute arose between Jeffrick and Van's
Tenant Interiors, Inc., the general contractor, which resulted in a lien foreclosure action with
regard to the improved Fashion Show Mall leaseholds. Able intervened in the action.
Following a trial on the merits, the district court entered its judgment in favor of Able. In
conjunction with the judgment for the amounts due under the subcontract, Able was granted
lien relief on the following leasehold interests to the extent indicated below:
Herbie K's $47,553.93
Airline Associates $ 4,067.26
Midnight Lace $ 5,956.70
The Toy Circus $23,072.33
The Zoo $12,296.00
Shortly after the judgment was rendered, Jeffrick began making periodic payments against
the balance of the judgment, plus twelve percent interest. Jeffrick ceased making payments in
February of 19S7.
104 Nev. 29, 31 (1988) Able Electric, Inc. v. Kaufman
ruary of 1987. To satisfy the outstanding balance of the judgment, Able commenced a writ of
execution against one of the leasehold interests against which it held a lien, Herbie K's.
Meanwhile, Jeffrick filed a motion for satisfaction of judgment and expungement of liens.
Jeffrick then obtained a temporary restraining order forestalling execution of the judgment
lien pending the outcome of its motion.
After a hearing on Jeffrick's motion, the district court ordered the monies received by
Able, approximately $120,000.00, applied to satisfy the judgment in part and to expunge the
liens attached to Jeffrick's leasehold interests in the first three lien claims in the order
appearing above, namely, Herbie K's, Airline Associates and Midnight Lace. In response to
the district court's decision Able filed a motion to alter or amend. The court denied Able's
motion. Able now appeals from the denial of its motion to alter or amend as well as from the
order granting Jeffrick's motion for satisfaction and expungement of liens in which the liens
of Herbie K's, Airline Associates and Midnight Lace were expunged.
Thirty-Day Notice of Appeal Period
[Headnote 1]
As a threshold issue, Jeffrick challenges this court's jurisdiction to hear the instant appeal.
According to Jeffrick, Able did not timely file a notice of appeal thus depriving this court of
the necessary jurisdiction. We disagree.
Pursuant to Nevada Rules of Appellate Procedure 4(a), a notice of appeal must be filed
within thirty days of the date of service of written notice of the entry of the order appealed.
However, this thirty-day period is terminated as to all parties by a timely filed motion to alter
or amend. NRAP 4(a). Thus, Able had until May 17, 1987, thirty days after written notice of
the denial of the motion to alter or amend, in which to file its notice of appeal. Since the
notice of appeal was filed on May 8, 1987, within the thirty-day period, this court has
jurisdiction to consider the merits of this appeal.
[Headnote 2]
We are not persuaded by Jeffrick's attempt to convert Able's motion to alter or amend into
a non-tolling motion for rehearing. Although Jeffrick is correct in concluding that a motion
for rehearing does not toll the thirty-day notice of appeal period, see Alvis v. State, Gaming
Control Bd., 99 Nev. 184, 660 P.2d 980 (1983), we do not agree that Able's motion can be
properly considered as a motion for rehearing under the circumstances of this case. The
district court did not consider any new evidence in arriving at its decision to deny Able's
motion to alter or amend; accordingly, we decline to treat such motion as a motion for
rehearing and thus deprive Able of its appeal.
104 Nev. 29, 32 (1988) Able Electric, Inc. v. Kaufman
arriving at its decision to deny Able's motion to alter or amend; accordingly, we decline to
treat such motion as a motion for rehearing and thus deprive Able of its appeal.
Lien Satisfaction and Expungement
Able argues that the district court erred in the manner in which the monies received by
Able in partial satisfaction of the judgment were applied to expunge the liens. We agree.
In its order granting Jeffrick's motion for satisfaction of judgment and expungement of
liens, the district court without any apparent stated grounds removed only the liens attached to
Jeffrick's leasehold interests in Herbie K's, Airline Associates and Midnight Lace. Able was
left with liens on the two remaining, worthless leaseholds, The Toy Circus and The Zoo.
Expungement of liens in this fashion deprives Able of valuable security interests.
[Headnote 3]
When a debtor partially satisfies a judgment, that debtor has the right to make an
appropriation of such payment to the particular obligations outstanding. See Warren Bros. Co.
v. Sentry Ins., 433 N.E.2d 1253 (Mass.App.Ct. 1982). This application must be submitted at
the time the payment is made. Warren Bros. Co., 433 N.E.2d at 1255.
[Headnotes 4-6]
Where no appropriation is made by the debtor concurrent with the payment, the right
passes to the creditor. See Preston County Coke Co. v. Preston County Light & Power Co.,
119 S.E.2d 420 (W.Va. 1961). Once the creditor communicates to the debtor the
appropriation of the payment, it is final, and the creditor may not thereafter change the
application to another debt. See Wolf v. Aero Factors Corp., 126 F.Supp. 872 (S.D.N.Y.
1954), aff'd, 221 F.2d 291 (2nd Cir. 1955). The creditor's right to appropriate the payments
received terminates at the time a controversy regarding such application arises. See Diesel
Service, Inc. v. Accessory Sales, Inc., 288 N.W.2d 258 (Neb. 1980).
[Headnotes 7, 8]
If both the debtor and the creditor fail to make reductions in the outstanding lien balances,
then the court is authorized to make the application. See Atlantic & Gulf Properties, Inc. v.
Palmer, 109 So.2d 768 (Fla.Dist.Ct.App. 1959). In directing the application of a payment, the
district court should be guided by the basic principles of justice and equity so that a fair result
can be achieved. See Hayes Pipe Supply v. McKendree Manor, Inc., 695 S.W.2d 174 (Tenn.
1985).
104 Nev. 29, 33 (1988) Able Electric, Inc. v. Kaufman
[Headnotes 9, 10]
Acting on the assumption that the debtor would desire all debts be paid, and mindful that
the purpose for granting a lien is to secure a debt owed to the creditor by the debtor, we
believe that equity and justice will be best served by a disposition that is most favorable to the
creditor at the time the appropriation is made. The manner in which the district court applied
the payments in reduction of the outstanding liens was not in the best interests of the lien
creditor. We therefore reverse both orders challenged on appeal and remand the case to the
district court with instructions to apply the payments in a manner which will best preserve the
security interests of the lien creditor, Able Electric.
____________
104 Nev. 33, 33 (1988) Roberts v. State of Nevada
JAMES R. ROBERTS, ROBERT I. ROSE, JOHN A. BAILEY, LAWRENCE KIRK,
JOSEPH DOSER, BRUCE E. BLACKADAR, ANNE HOWARD, CHAD MURVOSH,
STANLEY HILLYARD, MOHAMED YOUSEF, on behalf of themselves and all other
person similarly situated, Appellants, v. STATE OF NEVADA, UNIVERSITY OF
NEVADA SYSTEM, BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA and
the UNIVERSITY OF NEVADA SYSTEM, DANIEL KLAICH, FRANKIE SUE DEL
PAPA, DOROTHY GALLAGER, CHRIS KARAMANOS, JOAN KENNEY, JOANN
SHEERIN, JUNE WHITLEY, CAROLYN SPARKS, in their capacity as the BOARD OF
REGENTS of the UNIVERSITY OF NEVADA SYSTEM, Respondents
No. 18314
March 30, 1988 752 P.2d 221
Appeal from an order of the district court granting respondents' motion for summary
judgment and from an order of the district court denying appellants' motion to alter or amend
the judgment and motion to file a first amended complaint. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Professional employees of state university brought action against State and university,
claiming entitlement to retroactive longevity pay. Defendants moved for summary judgment
on immunity grounds. The district court granted defendants' motion and denied employees'
motion to alter or amend judgment and to file first-amended complaint. Employees appealed.
The Supreme Court held that professional employees were not entitled to retroactive
longevity pay.
104 Nev. 33, 34 (1988) Roberts v. State of Nevada
Court held that professional employees were not entitled to retroactive longevity pay.
Affirmed.
Dyer and McDonald, Carson City, for Appellants.
Brian McKay, Attorney General, Carson City; Donald Klasic, General Counsel, University
of Nevada System, Reno, for Respondents.
1. Administrative Law and Procedure.
Administrative regulations cannot contradict or conflict with statute they are intended to implement.
2. Statutes.
When a statute is clear and unambiguous on its face, court may not go beyond language of statute in
determining legislature's intent.
3. Colleges and Universities.
Professional employees of state university were not entitled to retroactive longevity pay; legislature's use
of word certain in title of longevity incentive plan statute denoted intent not to include all state
employees in plan, it was inconsistent to construe statute to include university professional employees, in
that longevity plan was to be administered by Personnel Division which had no authority over university
employees, Personnel Advisory Commission adopted rule expressly excluding university employees from
longevity plan shortly after enactment of statute, and legislature never appropriated money to pay
university professional employees longevity pay. NRS 284.177.
4. Statutes.
Legislative intent behind statute may be determined by examining circumstances which propelled
enactment of statute.
5. Statutes.
Nearly contemporaneous constructions of state statutes by administrative agencies charged with their
implementation are entitled to great weight in ascertaining statutes' meaning, especially when legislature
fails to repudiate agency's construction.
6. Statutes.
Although not controlling, legislature's construction of its own act is persuasive in ascertaining act's
meaning.
OPINION
Per Curiam:
The appellants are, or were, professional employees under contract with the University of
Nevada System. They have all worked for the state continuously for eight or more years,
during which time their job performance was rated standard or better. The professional
employees claim that NRS 284.177 entitled them collectively to receive approximately one
and one-half million dollars in retroactive longevity pay. The respondents (hereinafter, "the
State") are the State of Nevada, the University of Nevada System, and the regents of the
University of Nevada.
104 Nev. 33, 35 (1988) Roberts v. State of Nevada
after, the State) are the State of Nevada, the University of Nevada System, and the regents
of the University of Nevada.
In 1973, the Nevada Legislature enacted Chapter 529 of the Statutes of Nevadathe
source of NRS 284.177which provided:
A longevity incentive plan administered by the personnel division is hereby established
for employees with 10 years or more of continuous state service. Employees rated
standard or better with 10 years of continuous service shall receive $125 semiannually
with a semiannual increase of $25 for each additional year of service up to a maximum
semiannual amount of $250 for 15 years or more of continuous state service.
1973 Nev. Stats. ch. 529, at 822. Subsequent amendments to NRS 284.177 decreased the
number of years of service required for longevity pay eligibility from ten to eight and changed
the amount of compensation.
In 1974in response to an inquiry from an official at the University of Nevada as to
whether professional employees of the University of Nevada System were eligible for
longevity pay under NRS 284.177the State Personnel Division proposed, and the State
Personnel Advisory Commission adopted, the following rule:
Basic Plan
This plan is designed to apply only to those employees covered by the State merit system.
This will include State classified and unclassified employees and exclude contract,
judicial, legislative and university administrative and academic employees.
(Emphasis added). This rule was incorporated in section M of Rule III of Chapter 8200 of the
State Administrative Manual.
In 1982, Rule III(M) was amended to provide simply that the longevity pay plan
authorized by NRS 284.177 applies to classified and unclassified employees of the state.
The language of the former rule that specifically excluded contract, judicial, legislative and
university administrative and academic employees was deleted.
In 1984, the State Personnel Department (formerly the State Personnel Division) attempted
to amend NAC 284.262 (formerly part of Rule III(M)) to read as follows:
The plan to encourage continuity of service established pursuant to NRS 284.177 applies
to:
(1) Classified employees; and
(2) Unclassified employees whose positions are mentioned in NRS 2S4.140 and are
specifically authorized as unclassified positions by the legislature in the pay bill for
unclassified positions.
104 Nev. 33, 36 (1988) Roberts v. State of Nevada
NRS 284.140 and are specifically authorized as unclassified positions by the legislature
in the pay bill for unclassified positions.
Since the positions occupied by professional employees of the University of Nevada System
apparently were not specifically authorized as unclassified positions by the legislature in the
pay bill for unclassified employees, this language would have excluded the University of
Nevada professional employees from coverage under the longevity pay statute.
The State Personnel Commission adopted the proposed regulation; however, the
Legislative Counsel Bureau refused to approve the new language and, instead, revised it to
read as follows: The plan to encourage continuity of service established pursuant to NRS
284.177 applies to classified and unclassified employees of the State. This language was
submitted to the Legislative Commission and ultimately became effective after the
Legislative Commission failed to object to it.
In 1985, the legislature enacted NRS 284.179 to eliminate the confusion that NRS 284.177
had generated. That statute states succinctly that [t]he professional employees of the
University of Nevada System are not entitled to receive the increases provided in NRS
284.177. NRS 284.179 (emphasis added.)
The district court granted the State's motion for summary judgment on the grounds that the
State was immune from suit under NRS 41.032.
1
The district court reasoned that the 1982
and 1984 amendments to NAC 284.262 (formerly part of Rule III(M)) were invalid because
they were adopted pursuant to unconstitutional administrative procedures. Specifically, the
district court found NRS 233B.062 through NRS 233B.070, which provide for legislative
review of administrative regulations, to be violative of both the constitutionally mandated
procedures for enacting legislation and the separation of powers provisions of the Nevada
State Constitution. The district court concluded that since the 1982 and 1984 amendments
were invalid, the 1974 regulation, as it existed before its amendment, remained in effect. The
district court further concluded that the State acted with due care to implement the original
1974 regulation by not paying University of Nevada professional employees longevity
pay; the State was therefore immune from suit under NRS 41.032.
____________________

1
NRS 41.032 provides in part:
Except as provided in NRS 278.0233 no action may be brought under NRS 41.031 or against an immune
contractor or an officer or employee of the state or any of its agencies or political subdivisions which is:
1. Based upon an act or omission of an officer, employee or immune contractor, exercising due care,
in the execution of a statute or regulation, whether or not such statute or regulation is valid, if the statute
or regulation has not been declared invalid by a court of competent jurisdiction; or
. . . .
104 Nev. 33, 37 (1988) Roberts v. State of Nevada
care to implement the original 1974 regulation by not paying University of Nevada
professional employees longevity pay; the State was therefore immune from suit under NRS
41.032.
[Headnote 1]
Administrative regulations cannot contradict or conflict with the statute they are intended
to implement. Agsalud v. Blalack, 699 P.2d 17 (Haw. 1985); New Mexico Bd. of Pharmacy
v. New Mexico Bd. of Osteopathic Medical Examiners, 626 P.2d 854 (N.M. 1981). It
follows, then, that regulations may neither include nor exclude University of Nevada System
professional employees from the longevity pay provisions in NRS 284.177 unless in so doing
they conform to the original legislative intent behind the statute. Therefore, to determine
whether the University of Nevada professional employees are entitled to retroactive longevity
pay, we must construe NRS 284.177.
[Headnote 2]
As originally enacted, NRS 284.177 established a longevity payment plan for employees
who met specified requirements for duration and continuity of state service. See 1973 Nev.
Stats. ch. 529, at 822. We note that it is a fundamental rule of statutory construction that when
a statute is clear and unambiguous on its face, a court may not go beyond the language of the
statute in determining the legislature's intent. McKay v. Board of Supervisors, 102 Nev. 644,
730 P.2d 438 (1986); Cirac v. Lander County, 95 Nev. 723, 602 P.2d 1012 (1979). The term
employees, as used in the context of NRS 284.177, is subject to multiple interpretations
and thus ambiguous. When a statute is ambiguous, the plain meaning rule has no
application, McKay, 102 Nev. at 649, 730 P.2d at 442, and the statute can be construed in
line with what reason and public policy would indicate the legislature intended.' McKay, 102
Nev. at 649, 730 P.2d at 442 (quoting Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d
957, 959 (1983)).
[Headnote 3]
The over-generality of the language of NRS 284.177 becomes immediately apparent when
viewing the title of its source, 1973 Statutes of Nevada, Chapter 529, which declares that it is
AN ACT providing for a longevity incentive plan for certain state employees; and providing
other matters properly relating thereto. 1973 Nev. Stats. ch. 529, at 822 (emphasis added).
The legislature's use of the word certain in the title denotes an intent not to include all state
employees generally in the longevity incentive plan. See A Minor Girl v. Clark County
Juvenile Court Services, 87 Nev. 544, 490 P.2d 1248 (1971) (the title of an act or statute may
be considered in construing a statute).
104 Nev. 33, 38 (1988) Roberts v. State of Nevada
In addition, it is logically inconsistent to construe NRS 284.177 to include the University
of Nevada System professional employees. As originally enacted, NRS 284.177 provided that
the longevity plan was to be administered by the Personnel Division. The Personnel Division,
however, did not have authority over University of Nevada System professional employees.
We have noted in the past that, [t]he leading rule for the construction of statutes is to
ascertain the intention of the legislature in enacting the statute, and the intent, when
ascertained will prevail over the literal sense.' Welfare Div. v. Washoe Co. Welfare Dep't, 88
Nev. 635, 637, 503 P.2d 457, 458 (1972) (quoting State ex rel. O'Meara v. Ross, 20 Nev. 61,
63, 14 P. 827, 828 (1887)). In 1985 the legislature enacted section 1 of Chapter 277 of the
Statutes of Nevada.
2
This statute was later codified as NRS 284.179, which provides as
follows: The professional employees of the University of Nevada System are not entitled to
receive the increases provided in NRS 284.177. NRS 284.179. In section 2 of Chapter 277
of the 1985 Statutes of Nevada, the Legislature painstakingly explained that Section 1 of this
act does not change the rights of professional employees of the University of Nevada System.
It constitutes a declaration and clarification of existing law. 1985 Nev. Stats. Ch. 277 2, at
845. We observed in Sheriff v. Smith, 92 Nev. 729, 542 P.2d 440 (1975), that [w]here a
former statute is amended, or a doubtful interpretation of a former statute rendered certain by
subsequent legislation, it has been held that such amendment is persuasive evidence of what
the Legislature intended by the first statute. Sheriff v. Smith, 91 Nev. at 734, 542 P.2d at 443
(citations omitted). It would be difficult to imagine a more certain, if not more timely,
expression of the legislature's original intent regarding the scope of NRS 284.177.
[Headnote 4]
The legislative intent behind a statute may also be determined by examining the
circumstances which propelled the enactment of the statute. See McKay, 102 Nev. at 650, 730
P.2d at 443 (citation omitted). As NRS 284.177 was originally enacted, the State Personnel
Division was to administer the longevity pay compensation scheme. See 1973 Nev. Stats. ch.
529, at 822. A former chief of classification and pay of the Personnel Division of the State
Department of Administration stated in his affidavit that: The concept of the [1973]
longevity pay statute . . . originated with the Personnel Division.
____________________

2
The title of Chapter 277, 1985 Statutes of Nevada is AN ACT relating to public employees; confirming the
exclusion of professional employees of the University of Nevada System from the payment of additional
compensation for continuous service; and providing other matters properly relating thereto. 1985 Nev. Stats.
ch. 277, at 845 (emphasis added).
104 Nev. 33, 39 (1988) Roberts v. State of Nevada
The concept of the [1973] longevity pay statute . . . originated with the Personnel
Division. It was never the intention of the Personnel Division to include the University of
Nevada's professional employees in the coverage of the longevity pay law. In fact, in
helping to prepare the fiscal note for the legislature on this legislation, the Personnel
Division excluded the University of Nevada's professional employees from the
computations of the cost of a longevity pay plan.
. . . . The University of Nevada has always independently administered its professional
employees' positions and introduced separate lump-sum appropriations bills in the
legislature for the payment of its professional employees.
The University of Nevada had always claimed the right to administer its professional
employees' positions separately from the Personnel Division and to establish its own
compensation schedules for them, and this right had always been acquiesced in by the
legislature and the Personnel Division because of the University of Nevada's claim to
special constitutional status. . . .
The deputy budget director of the budget office of the Nevada Department of
Administration participated in the drafting of NRS 284.177 in 1973. In his affidavit he agreed
that it was never the Personnel Division's intention to include professional employees of the
University of Nevada System in the coverage of NRS 284.177. The former deputy budget
director explained:
The legislation as drafted by the Personnel Division did not, by its terms, specifically
exclude the University of Nevada's professional employees because of the common
belief in the Personnel Division and the Department of Administration that the
University of Nevada's professional employees did not need to be named in any
legislation which provided for the administration of employment positions by the
Personnel Division.
[Headnote 5]
As stated earlier, shortly after the enactment of NRS 284.177, the Personnel Division
proposed, and the State Personnel Advisory Commission adopted, a rule expressly excluding
University administrative and academic employees from the longevity plan. We believe that
such nearly contemporaneous constructions of state statutes by administrative agencies
charged with their implementation are entitled to great weight, especially when, as in the
present case, the legislature fails to repudiate the agency's construction. See Atlantic Richfield
Co. v. Federal Energy Admin., 429 F.Supp.
104 Nev. 33, 40 (1988) Roberts v. State of Nevada
429 F.Supp. 1052 (N.D.Ca. 1976); see also Davis v. Conour, 497 P.2d 1015 (Colo. 1972);
see also Hofmeister v. Frank Realty Co., 373 A.2d 273 (Md.App. 1977); see also Green
River Community College v. Higher Education Personnel Bd., 622 P.2d 826 (Wash. 1980).
[Headnote 6]
Finally, we are cognizant of the fact that during the entire time that NRS 284.177 has been
in effect, the legislature has never appropriated money to pay the University of Nevada
System's professional employees longevity pay. This may be taken as a confirmation of the
legislature's original and continuing intent to exclude the professional employees of the
University of Nevada System from the scope of NRS 284.177. Although not controlling, the
legislature's construction of its own act is persuasive in ascertaining the act's meaning.
Commercial Nat'l Bank v. Arkansas Children's Hospital, 511 S.W.2d 640 (Ark. 1974).
While our analysis proceeds along a path different from that of the district court, we reach
the same conclusion and, therefore, need not disturb the district court's decision. See Hotel
Riviera, Inc. v. Torres, 97 Nev. 399, 632 P.2d 1155 (1981). Accordingly, we affirm the order
of the district court granting summary judgment in favor of the State of Nevada, the
University of Nevada System, and the regents of the University of Nevada. For the same
reasons, we affirm the district court's order denying the motions of the professional
employees of the University of Nevada System to alter or amend the judgment and to file an
amended complaint.
____________
104 Nev. 40, 40 (1988) Varwig v. State
IVAN LEWIS VARWIG, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18408
JIMMY RAY PITSONBARGER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18629
March 30, 1988 752 P.2d 760
Motions to hold appeals in abeyance pending post-conviction proceedings. Second Judicial
District Court, Washoe County; James J. Guinan, Judge.
Defendants were convicted by the district court. Defendants appealed. Defendants moved
to hold their appeals in abeyance pending resolution of petitions for post-conviction relief.
104 Nev. 40, 41 (1988) Varwig v. State
pending resolution of petitions for post-conviction relief. The Supreme Court held that mere
showing of prima facie case was no longer sufficient to hold direct appeals in abeyance.
Motions denied.
David G. Parraguirre, Public Defender, and David A. Cass, Deputy, Washoe County, for
Appellants.
Brian McKay, Attorney General, Carson City; and Mills Lane, District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
Direct appeals will not be held in abeyance pending resolution of related post-conviction proceedings in
district court based on mere showing of prima facie case; rather, the Supreme Court will exercise its
discretion to hold appeals in abeyance only in unusual and extraordinary cases.
2. Criminal Law.
In order to establish good cause for granting motion to hold direct appeal in abeyance pending resolution
of related post-conviction proceeding in district court, appellant must demonstrate both that he is likely to
succeed on merits of post-conviction petition and that there is strong likelihood that holding direct appeal
in abeyance will serve end of judicial economy.
OPINION
Per Curiam:
These are appeals from judgments of conviction. Appellants have moved to hold their
appeals in abeyance pending resolution of their petitions in the district court for
post-conviction relief.
In Daniels v. State, 100 Nev. 579, 688 P.2d 315 (1984), this court indicated that we would
consider a motion to hold a direct appeal from a judgment of conviction in abeyance if
appellant affirmatively demonstrated that he had actually filed his petition for post-conviction
relief in the district court, and made a showing that his petition for post-conviction relief had
prima facie merit. The purpose for such a procedure was to promote judicial economy either
because an order of the district court granting a petition for post-conviction relief might
render a direct appeal moot or because this court could consider an appeal from the district
court's denial of a petition for post-conviction relief and a direct appeal in a single
proceeding.
It has been our experience that the end of judicial economy has not been served by the
abeyance procedure announced in Daniels. Specifically, direct appeals from judgments of
conviction which have been held in abeyance pending resolution of post-conviction matters
are increasingly clogging the dockets of this court.
104 Nev. 40, 42 (1988) Varwig v. State
court. The administrative burden of tracking these delayed appeals and insuring that the
matters pending below are pursued expeditiously has proven to be substantial. In addition, the
vast majority of petitions for post-conviction relief have been unsuccessful. Indeed, a review
of the records of our clerk's office has not revealed a single instance in which a direct appeal
has been rendered moot by post-conviction proceedings.
In a usual case, where the record on direct appeal is relatively short and the issues are
straightforward, delaying the direct appeal pending post-conviction proceedings and then
attempting to consolidate the two appeals often creates procedural and administrative
problems. For example, practitioners often neglect to inform this court when a
post-conviction proceeding has been resolved in the district court, thus delaying a direct
appeal beyond the time necessary for the resolution of the post-conviction proceedings. A
direct appeal is then further delayed while a record of the post-conviction proceeding is
prepared and transmitted to this court. Further, practitioners often request that the two appeals
be consolidated before the second appeal is docketed in this court. Also, practitioners often
neglect to file notices of appeal and to designate properly the record in the post-conviction
proceedings because of the misperception that the two appeals are a single proceeding. This
causes unnecessary confusion for the clerk of the district court and for the clerk of this court.
In addition, this court receives numerous requests from prisoners proceeding in proper
person to hold their direct appeals in abeyance pending post-conviction proceedings. Because
this court has no means of monitoring the status of proper person proceedings in the district
court, it is impracticable to grant such requests. Finally, the failure of this court to resolve
issues pending on direct appeal often impacts adversely on the case before the district court
because the district court must hear and consider issues that might be precluded by a decision
on the merits of the direct appeal. The result is that one difficult case is often created from
two simple cases.
[Headnotes 1, 2]
Accordingly, we will no longer hold direct appeals in abeyance pending resolution of
related post-conviction proceedings in the district court based on a mere showing of a prima
facie case. Instead, this court will henceforth exercise its discretion to hold appeals in
abeyance only in unusual and extraordinary cases. In order to establish good cause for
granting a motion to hold a direct appeal in abeyance, an appellant must demonstrate both
that he is likely to succeed on the merits of his post-conviction petition and that there is a
strong likelihood that holding the direct appeal in abeyance will serve the end of judicial
economy.
104 Nev. 40, 43 (1988) Varwig v. State
Appellants have not carried their burden of demonstrating good cause for their motions in
these cases. Nevertheless, as this opinion represents a departure from prior procedure, we
conclude that appellants should be allowed to pursue their motions if they believe they can
show good cause under the standard set forth above. Accordingly, we deny these motions
without prejudice to appellants' rights to refile properly documented and supported motions
for the relief they seek.
1

____________________

1
Appellants shall have thirty (30) days from the date of this opinion within which to serve and file their
opening briefs. Thereafter, briefing shall proceed pursuant to NRAP 31(a).
____________
104 Nev. 43, 43 (1988) Winiarz v. State
CONSUELO WINIARZ, aka CONSUELO WEST,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 17510
March 31, 1988 752 P.2d 761
Appeal from judgment of conviction of first degree murder with use of a deadly weapon.
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Defendant was convicted in the district court of premeditated first degree murder, and
defendant appealed. The Supreme Court, Springer, J., held that: (1) reversible error occurred
when psychiatrist, who was appointed by court to examine defendant at request of defense
counsel and who was called by state at trial, attacked defendant's credibility by saying that she
was lying and feigning when she claimed she shot her husband accidentally, and (2)
reversible error occurred when psychiatrist gave his expert opinion that defendant was
murderer who killed her husband in cold blood and in premeditated fashion.
Reversed and remanded.
George R. Carter and John G. Watkins, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Roberta J.
O'Neale, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Reversible error occurred in murder prosecution when psychiatrist, who was appointed by court to
examine defendant at request of defense counsel and who was called by state at trial, attacked defendant's
credibility by saying that she was lying and feigning when she claimed she shot her
husband accidentally, since defendant's credibility was most important element of
her defense.
104 Nev. 43, 44 (1988) Winiarz v. State
credibility by saying that she was lying and feigning when she claimed she shot her husband accidentally,
since defendant's credibility was most important element of her defense.
2. Criminal Law.
Reversible error occurred in murder prosecution when psychiatrist, who had been appointed by court to
examine defendant at request of defense counsel and who was called by state at trial, gave his expert
opinion that defendant was murderer who killed her husband in cold blood and in premeditated fashion;
psychiatrist's diagnosis of defendant as murderer went beyond bounds of permissible expert opinion since
psychiatrist's testimony came very close to answering impermissible question of whether defendant was
guilty or not.
OPINION
By the Court, Springer, J.:
Consuelo Winiarz shot Jacob Winiarz and killed him.
1
She claims that it was an accident,
done as part of an April Fools' routine acted out by Jacob and her on April Fools' Day and on
at least one other occasion prior to the fatal shooting. Consuelo stands convicted of
premeditated first degree murder with the use of a deadly weapon and is serving two
consecutive sentences of life imprisonment without possibility of parole.
Consuelo's story goes like this: On April Fools' Day, Consuelo and Jacob decided to play a
little joke on their friends. Jacob thought it would funny if they were to stage a fake shooting
with blank ammunition. The couple pretended to be engaged in an argument during which
Consuelo fired a blank shot at Jacob. Jacob ran down the hall screaming and then fell dead
on the floor, Consuelo fell to her knees over his corpse. Great fun. April Fool!
The trick worked so well, according to Consuelo, that they tried it again before the time of
the fatal shooting. Jacob did the loading of the gun. On April 22, Easter Sunday, they tried it
one last time. The day started out happily for Consuelo and Jacob. They enjoyed marital
relations together. Consuelo prepared breakfast. She worked in the garden and washed and
waxed her car. Consuelo drank beer, a case of it, according to Consuelo's testimony. Friends
stopped by. Consuelo says that she was not in any way angry with Jacob, and they had no
arguments or other conflict.
In the afternoon, Jacob came into Consuelo's bedroom and, by Consuelo's testimony, said
that he wanted to do their April Fools' routine. The plan was to fake an argument about Jacob
not waxing the car.
____________________

1
Consuelo and Jacob were married in a ceremony determined by the trial judge in this case to be invalid.
104 Nev. 43, 45 (1988) Winiarz v. State
waxing the car. Consuelo claims that Jacob handed her the gun and after screaming loudly for
the benefit of guests, that he had better go was the f---ing car or [she] would kill him,
Consuelo pulled the trigger. Jacob turned, as before, ran down the hall screaming and fell to
the floor, dead. Evidence indicated that four bullets were fired, and three bullets struck Jacob.
Consuelo testified that she walked past Jacob in the hall, laid the gun down on the kitchen
table, and returned to the bedroom to put on her makeup. When she still heard Jacob
screaming, she walked back to Jacob and said, Get up, asshole. Hearing him moan and
seeing blood, Consuelo tried to telephone for help and ran out to the street screaming for
help.
The prosecution rejected Consuelo's April Fools' story and charged a planned, intentional
killing on Consuelo's part. The prosecution's case casts the episode in a different light.
Witnesses for the prosecution testified that Consuelo admitted being angry with Jacob on the
day of the killing and testified that Jacob's ex-wife had annoyingly telephoned on that day.
One witness testified that Consuelo had, in her presence, ridiculed Jacob's sexual talents.
Another prosecution witness testified that Consuelo did not appear to be intoxicated or under
the influence of alcohol.
When the shots were heard by the guests, one of them remarked that they should not be
concerned because the couple had played this joke before. Later, however, one of the guests
testified to having heard Consuelo say, in an evil, queer voice: It wasn't a joke. Another
witness testified that as Consuelo placed the gun on the kitchen table she said: Don't touch
the gun. I just shot my husband. I have to call an ambulance. Afterwards, witnesses saw
Consuelo hysterically screaming, outside of the house, that she had shot Jacob.
Undisputed evidence establishes that Consuelo was intoxicated on that day. Her blood
alcohol analysis revealed a .19 percent by weight at 7:20 p.m., approximately two and
one-half hours after the shooting.
2
Consuelo did not have her glasses on at the time of the
shooting and her optometrist testified that Consuelo could not see clearly beyond four feet.
She has always claimed that the shooting was an accident.
A reading of these facts leaves the reader without any doubt as to what this case is all
about: Is Consuelo telling the truth about the April Fool's joke? The answer to this question
tells whether she is a murder or not. Unfortunately for Consuelo this question was answered
for her by her own doctor, who, when called by the prosecution, testified that in his opinion
she was a liar and that she "murdered her husband in cold blood in a premeditated
fashion."
____________________

2
Dr. Verdun Trione testified that an individual, like Consuelo, would have had a blood alcohol level of .23 or
.24 percent by weight at 5:00 p.m. if her blood alcohol at 7:20 p.m. was .19 percent by weight.
104 Nev. 43, 46 (1988) Winiarz v. State
by the prosecution, testified that in his opinion she was a liar and that she murdered her
husband in cold blood in a premeditated fashion. The jury agreed with Consuelo's doctor, a
psychiatrist appointed by the court to examine her, and by their verdict, found that she was
indeed a cold-blooded murderer, finding her guilty of murder in the first degree and punishing
her with a sentence of life imprisonment without possibility of parole.
We hold, first, that it was error under Esquivel v. State, 96 Nev. 777, 617 P.2d 857 (1980),
to permit Dr. Master to attack Consuelo's credibility, to say that she was lying and
feigning, when such testimony was based largely upon his psychiatric interview with her.
Secondly, under McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982), cert. denied, 106
S.Ct. 868 (1986), it was error for Consuelo's psychiatrist to use the confidential contents of
his interview with her in order to assist the prosecution in obtaining a conviction.
Finally, Dr. Master's testimony that he believed Consuelo was a cold-blooded murderer
goes to the ultimate issue in this case and constituted a highly prejudicial, improper
expression of opinion.
Some explaining is in order to show how this all could possibly have happened, a
defendant's being convicted at the hands of her own physician. Dr. Master was called in as
one of two psychiatrists appointed by the court at the request of defense counsel. Apparently
defense counsel, finding his client in a very disturbed emotional condition, asked the court to
appoint two psychiatrists under NRS 178.415, in order to have professional opinions on his
client's sanity at the time of the shooting and on whether his client was mentally competent to
stand trial.
The two appointed psychiatrists examined Consuelo and concluded that she was not
mentally incapacitated (that she was sane) at the time of the shooting and that she was
mentally competent to stand trial.
After receiving the report of the examination by Dr. Master and the other psychiatrist the
trial proceeded. No defense of insanity was interposed or suggested; and the defense did not,
naturally, call Dr. Master. The defense did, however, call a psychologist, Dr. Verdun Trione,
to testify on the effect that alcohol would have on a person of Consuelo's weight and level of
alcohol consumption on the date of the shooting. Had Dr. Trione's testimony stopped here,
there would not have been any justification for the state's calling Dr. Master as its own
witness because the defense had never made an issue of Consuelo's sanity and had maintained
only that she had, in a intoxicated condition, made a tragic mistake.
104 Nev. 43, 47 (1988) Winiarz v. State
Defense counsel went beyond the defense of accident and mistake, however, and asked Dr.
Trione if a person like Consuelo, one weighing what she did and having consumed the
amount of alcohol that she did, would be capable of premeditation or deliberation.
3

Defense counsel's asking Dr. Trione about a person's ability to premeditate and
deliberate introduced an issue that had not theretofore been before the jury. Consuelo herself
never claimed such a cognitive incapacity and, as stated, rested her defense entirely on
mistake and misadventure contributed to by alcohol abuse.
The prosecution, understandably and correctly, took this testimony as giving it an
opportunity to call a psychiatrist to rebut Dr. Trione's hypothesis, that someone in Consuelo's
condition was unable to perform the cognitive processes necessary to be able to premeditate
and deliberate. Consuelo's psychiatrist, Dr. Master, was called to do the task.
4

The crucial question in this case was the prosecutor's asking Dr. Master to describe the
state of mind of the defendant at the time of this offense. Permitting the doctor, over
objection, to answer this question opened up a chamber of horrors that culminated in the
jury's being told by the court-certified expert that his patient (in a sense) was a liar and a
murderer.
Asking the doctor to testify as to Consuelo's state of mind permitted comment on a wide
array of damning testimony.
____________________

3
Dr. Trione, was asked to give his opinion on the effect of alcohol on a hypothetical female person who
weighed 120 pounds, had had nothing to eat during the day, had been drinking beer all day and had a blood
alcohol content of between .19 and .23 percent (facts which fit Consuelo's case according to the evidence). The
psychologist testified as follows:
Q. A person whose [sic] a .19, .19 to a .23, would that person be capable of premeditation?
A. I don't see how.
Q. What about deliberation?
A. No. They are too disoriented.
The psychologist gave other testimony concerning the mental state of a person in the stated condition of
intoxication. He did not testify that Consuelo was insane or otherwise mentally incapacitated.

4
It may not be entirely accurate to refer to Dr. Master as Consuelo's physician even though it is safe to
assume that neither Consuelo nor her defense attorney thought that he was to be a state's witness, hired to give
incriminating evidence out of his psychiatric interview. Dr. Master was Consuelo's psychiatrist in the sense that
he was employed to diagnose her mental condition. In order for the doctor to do this, some kind of
physician-patient relationship had to exist. The doctor's duty to Consuelo arises out of this relationship, and, [I]t
is immaterial whether the court ordered examination was at the request of defendant or the prosecution or that
both were to receive copies of the report. McKenna, 98 Nev. at 39, 639 P.2d at 558 (citing Collins v. Auger, 428
F.Supp. 1079, 1082 (S.D. Iowa 1977).
104 Nev. 43, 48 (1988) Winiarz v. State
Although, as said, sanity was never in issue, the doctor testified that Consuelo had the ability
to know right from wrong and, in essence, was perfectly sane at the time of the shooting.
Worse, he described her as dis-social, as an histrionic, as a liar and as a murderer. Unlike
the testimony of the psychologist called by the defense, Dr. Master did not testify in terms of
a hypothetical person; rather, he gave his clinical impression of Consuelo herself. The
following is an outline of Dr. Master's broad-spectrum story of Consuelo's mental state:
The prosecution, in exploring Consuelo's mental state, went about asking Dr. Master
which of his two original impressions, (1) confused, accidental shooting while playing
a joke, or (2) cold-blooded murder, he now, as a witness for the prosecution, favored.
To assist the doctor in choosing between the two impressions the district attorney read
into the record several pages of incriminating what-ifs. For example, the district
attorney asked Dr. Master if he had taken, since his original examination of Consuelo,
the opportunity to review a large number of police reports and witness statements in this
matter? Dr. Master said, Yes, that he did have an opportunity to review a large
number of unspecified reports and statements. Dr. Master was then asked if he had
considered two specified reports, one from Dr. Acosta, another from a psychiatric
counselor, a Mr. Pheifer. Defense counsel advised the court that, as an officer of the
court, he had never received such reports.
Dr. Master then testified that in making his choice between the accident and the murder
scenarios, his conversation with the Metro dispatcher was of some assistance. No one
knows what this conversation was about or how it assisted the doctor in making his
choice between diametrically opposed impressions.
A number of other hypothetical facts were presented to Dr. Master in the presence of
the jury, including one that Consuelo tends to make verbal threats such as, I'm going to
shoot you in the balls if you don't do what I say to do. Defense counsel objected to this
line of questioning. The objection was overruled.
The prosecutor then asked Dr. Master to consider the various reports and a lengthy list
of hypothetical facts too numerous to include in this opinion, and asked him: [W]hat
would your opinion now be as to her state of mind? (Emphasis added). In answer to this
question Dr. Master testified that these new facts would lead him toward the second
possibility in his original reportthe coldblooded, premeditated murder possibility.
104 Nev. 43, 49 (1988) Winiarz v. State
blooded, premeditated murder possibility. He then went on to make a new diagnosis of
Consuelo as possessing a histrionic and dis-social personality, described in terms of
lying, faking, feigning and engaging in a Sarah Bernhart [sic] type routine,
thereby directly attacking Consuelo's credibility, the most important and crucial issue in
her defense.
[Headnote 1]
In Esquivel we condemned an examining psychiatrist's challenging an examined subject's
credibility. Esquivel was accused of rape. He admitted the sexual act but claimed that it had
been consented to. His credibility was clearly the most important element of his defense. The
prosecution impeached Esquivel's credibility with statements made to a psychiatrist during a
court-ordered mental examination. In Esquivel we said:
We believe that admission of these statements was error as a subject being examined by a
court appointed physician should feel free in such a clinical climate to discuss all the
facts relevant to the examination without the guarded fear that the statements may later
be used against him. Fair play dictates nothing less. . . . Here the principal issue in the
case was Esquivel's credibility; the damaging evidence introduced to impeach his own
testimony was garnered during Esquivel's mental examination. We may not deem the
evidence harmless error under the factual posture presented and must therefore reverse
and remand the case to the district court for a new trial.
(Footnotes and citations omitted). Exactly the same considerations are present in the case now
before us.
The rule in McKenna has also been violatednot so clearly as in the Esquivel rule, but
still violated.
In McKenna, we condemned the presentation by a psychiatrist of admissions of guilt made
by a defendant during his psychiatric interview and examination. The admission made by
McKenna related to commission of the criminal act itself, the actus reus, rather than the mens
rea. The issue in the case before us is not the act but the intent. Consuelo's intent in this case
is just as important a part of her guilt or innocence as was the question of whether McKenna
did or did not inflict a mortal would on his cellmate.
If Consuelo had admitted flatly to Dr. Master that she had intentionally killed Jacob, there
would be no distinction at all between this case and McKenna. The only difference between
the present case and one involving a direct admission is that Dr. Master's testimony that
Consuelo was lying and had in fact murdered her husband comes not from a
single-statement admission but rather from a composite of the statements made by
Consuelo in her psychiatric interview.
104 Nev. 43, 50 (1988) Winiarz v. State
murdered her husband comes not from a single-statement admission but rather from a
composite of the statements made by Consuelo in her psychiatric interview.
In McKenna we said that the testimony of Dr. Master (the same), telling of admissions
made by McKenna about killing his cellmate, could not in fairness be used to convict him.
Concerning the use of admissions made in the course of a psychiatric examination, we said
that [f]air play does indeed dictate that our trial courts not appoint a psychiatrist to examine
the accused and then apply the confidential contents of the interview to obtain a conviction.
McKenna, 98 Nev. at 39, 639 P.2d at 558.
In McKenna factual admissions of McKenna's criminal agency were used to establish his
guilt, whereas, the entire interview of Consuelo with Dr. Master was used by him to
establish her guilt. Id. To borrow additional language from McKenna, Dr. Master was
allowed to examine [the] accused and then apply the confidential contents of the interview
to obtain a conviction.
5
In doing this there was, as in McKenna, a violation of federal
constitutional rights to due process, and we are obliged to apply again the test of Chapman v.
California, 386 U.S. 18 (1966). To affirm this conviction we must be able to declare that the
constitutional error was harmless beyond a reasonable doubt. This we cannot do.
Borrowing again from McKenna: Applying the Chapman standard, it is within the realm
of possibility that, absent the constitutionally forbidden admissions contained in the
psychiatrists' testimony, honest, fair-minded jurors might have brought in a lesser verdict.
Under these circumstances, it is impossible for us to say that the state has demonstrated,
beyond a reasonable doubt, that the evidence did not contribute to [Consuelo's] conviction.
We therefore reverse and remand for new trial.
[Headnote 2]
As a final basis for reversal, we specify Dr. Master's expression of opinion as to
Consuelo's guilt or innocence. The doctor's diagnosis of Consuelo as a murderer goes
considerably beyond the bounds of permissible expert opinion. Dr. Master was not asked:
Doctor, in your opinion, based upon your examination of Consuelo Winiarz, is she or is she
not guilty of murder?, but Dr. Master's testimony comes very close to answering this
question.
____________________

5
The state argues that Dr. Master's testimony is exempt from the McKenna rule because he testified only as
to mental condition and not to guilt. In the case before us guilt and mental condition are inextricable. There is
no question about Consuelo's responsibility for the homicide. The question is whether she intended to kill Jacob
or made a giant mistake. Dr. Master pretty much settled this question.
104 Nev. 43, 51 (1988) Winiarz v. State
We hold that it was error to permit Dr. Master, under the guise of describing Consuelo's
mental state, to give to the jury, based on his psychiatric examination, an expert opinion that
the woman he examined, now before the bar of justice, was plainly and simply a murderer
who killed her husband in cold blood in a premeditated fashion. Such a usurpation of the
jury function by a qualified expert is undeniably, of itself, reversible error.
6

Independently and in concert, the four mentioned errors require that this conviction be
reversed. The matter is, then, reversed and remanded for a new trial.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________________

6
This proposition is codified in Rule 704(b) of the Federal Rules of Evidence in the following terms:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a
criminal case may state an opinion or inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
____________
104 Nev. 51, 51 (1988) Walstrom v. State
ROBERT E. WALSTROM, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17957
March 31, 1988 752 P.2d 225
Appeal from a felony conviction for lewdness with a minor. First Judicial District Court,
Carson City; Michael E. Fondi, Judge.
Defendant was convicted in the district court of lewdness with a minor, and he appealed.
The Supreme Court held that: (1) crime is done in a secret manner, under statute tolling
statute of limitations if crime is committed in secret manner, when it is committed in
deliberately surreptitious manner that is intended to and does keep all but those committing
crime unaware that offense has been committed, and (2) substantial evidence supported
conclusion that defendant committed crime of lewdness with a minor in a secret manner so as
to toll applicable statute of limitations until crime was discovered.
Affirmed.
Terry, Winter & Wessel, Carson City, for Appellant.
Brian McKay, Attorney General, and Noel S. Waters, District Attorney, Carson City, for
Respondent.
104 Nev. 51, 52 (1988) Walstrom v. State
1. Criminal Law.
Under statute tolling statute of limitations if crime is committed in a secret manner, burden is on State
to prove that crime was committed in secret manner. NRS 171.095.
2. Criminal Law.
Under statute tolling statute of limitations if crime was committed in secret manner, State's burden of
proving that crime was committed in secret manner is not one of proof beyond reasonable doubt, but only
by preponderance of evidence. NRS 171.095.
3. Criminal Law.
Crime is done in a secret manner, under statute tolling statute of limitations if crime is committed in
secret manner, when it is committed in deliberately surreptitious manner that is intended to and does keep
all but those committing crime unaware that offense has been committed; therefore, if crime of physical
abuse, or elated crime, is committed against victim who remains alive, it would not normally be committed
in secret manner under the statute. NRS 171.095.
4. Criminal Law.
Given inherently vulnerable nature of child, crime of lewdness with minor can be committed in secret
manner within meaning of statute tolling limitations period even though victim is involved. NRS
171.095.
5. Criminal Law.
Substantial evidence supported conclusion that defendant committed crime of lewdness with a minor in a
secret manner so as to toll applicable statute of limitations until crime was discovered; slides showing
defendant committing lewd acts with young girl indicated that defendant and victim were alone when slides
were taken, and slides were developed from film found in locked footlocker in defendant's private vehicle,
indicating defendant's desire to keep his illegal activity secret. NRS 171.095.
OPINION
Per Curiam:
THE FACTS
In June 1986, Janine Walstrom asked her friend Francis Grey to be a witness while they
examined the contents of a metal footlocker located in her husband's pickup truck. When they
opened the locker, they found child pornography. Based on the affidavit of Ms. Grey,
detective Susan Coffey of the Carson City Sheriff's Office executed a search warrant and
seized the materials in the footlocker.
Detective Coffey found a roll of undeveloped film in the bottom of the footlocker. When
developed, the slides showed appellant Walstrom committing lewd acts with a young girl.
1
The pictures of these acts were taken, at the very latest, in 1978, eight years before they were
seized. Despite some effort by the State, the victim was never located.
____________________

1
The girl appeared to between five and ten years old.
104 Nev. 51, 53 (1988) Walstrom v. State
Walstrom was arrested under NRS 201.2302 and interviewed. He admitted collecting child
pornography but denied ever using children to produce his own pornography.
After a bench trial, Walstrom was convicted of lewdness with a minor and sentenced to ten
years. He appeals.
DISCUSSION
Because the State produced irrefutable proof that Walstrom is guilty of the crime, the main
issue is whether the statute of limitations was tolled. NRS 171.085 provides:
Except as provided in NRS 171.095, an indictment for:
. . . .
2. Any other felony than murder, theft, robbery, burglary, forgery, arson or sexual
assault must be found, or an information or complaint filed, within 3 years after the
commission of the offense.
NRS 171.095(1) provides:
If a felony . . . is committed in a secret manner . . . an information [must be] filed
[within three or four years] after the discovery of the offense.
The felony crime was committed, at the latest, in 1978. The information was filed in 1986,
shortly after the film showing the crime was discovered. Unless the NRS 171.095 in a secret
manner exception tolls the statute of limitations, the conviction must be reversed as the
lower court did not have subject matter jurisdiction.
3
Brannen v. State, 102 Nev. 7, 714 P.2d
175 (1986); Melvin v. Sheriff, 92 Nev. 146, 546 P.2d 1294 (1976).
In interpreting NRS 171.095, we must first decide whether the State must bear the burden
of establishing that the crime was done in a secret manner, or whether the defendant must
bear the burden of establishing that the crime was not done in a secret manner. The lower
court held that the State had the burden to prove the crime was committed in a secret manner
beyond a reasonable doubt, and concluded it had done so.
[Headnote 1]
We note that exceptions to criminal statutes of limitations are narrowly construed and read
in a light most favorable to the accused.4 State v. Merolla, 100 Nev. 461, 464
____________________

2
NRS 201.230 provides: Any person who willfully and lewdly commits any lewd or lascivious act . . . upon
or with the body . . . of a child under the age of 14 years . . . shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 10 years.

3
Because the crime occurred before the 1985 modification of NRS 171.095, the exception in 171.095(2)
does not apply in this case.
104 Nev. 51, 54 (1988) Walstrom v. State
accused.
4
State v. Merolla, 100 Nev. 461, 464, 686 P.2d 244, 246 (1984). We therefore agree
with the lower court that, under NRS 171.095, the burden is on the State to prove that the
crime was committed in a secret manner in order to toll the statute of limitations for criminal
actions. This conclusion is consistent with our general rule of favorable construction for a
defendant. Moreover, it is consistent with the well-established principle that the State must
prove that an offense was committed within the statutorily permitted period for prosecution.
5
It is also consistent with the few decisions of other states that have considered the specific
issue.
6

[Headnote 2]
However, we conclude that the State's burden is not one of proof beyond a reasonable
doubt, but only by a preponderance of the evidence.
7
See State v. Tibor, 373 N.W.2d 877,
883 (N.D. 1985); People v. Zamora, 557 P.2d 75, 93 n. 27 (Cal. 1975). The lesser standard is
appropriate because proving the application of the exception to the statute is not the same as
proving an element of the crime. Proving the exception to the statute of limitations addresses
the issue of the court's jurisdiction; proving an element of the crime concerns the issue of a
defendant's guilt or innocence.
____________________

4
We should add, however, that one of the reasons for construing exceptions to statutes of limitations
narrowly does not exist in this situation. We construe exceptions narrowly because with the passage of time
exculpatory evidence may disappear, prejudicing the defendant. However, in this case, no such exculpatory
evidence exists.

5
See, e.g., State v. Lester, 317 S.E.2d 295, 297 (Ga.App. 1984); Duncan v. State, 384 A.2d 456, 457 (Md.
1978); State v. Tibor, 373 N.W.2d 877, 883 (N.D. 1985); Annotation, Burden on State To Show that Crime Was
Committed Within Limitation Period, 13 A.L.R. 1446, 1446 (1921) (It is well settled that, where the issue of
the Statute of Limitations is raised in a criminal case, the state must affirmatively prove the commission of the
offense within the statutory period.) (citations omitted).

6
See United States v. Gonsalves, 675 F.2d 1050, 1054 (9th Cir.), cert. denied, 459 U.S. 837 (1982); People
v. Zamora, 557 P.2d 75, 93 n. 27 (Cal. 1976); Tibor, 373 N.W. 2d 877, 883 (N.D. 1985). See also 29 Am.Jur.2d
Evidence 155 (1967) (In the event that the prosecution relies on an exception to remove the bar of the statute,
it has the burden of proof to show its right to prosecute for the offense.) (footnote omitted); Annotation, Burden
on State To Show that Crime Was Committed Within Limitation Period, 13 A.L.R. 1446, 1449 (1921) ([I]f the
prosecution relies on an exception to remove the bar of the statute, the burden of proof is on the state to show its
right to prosecute for the offense.) (citations omitted).

7
A preponderance of the evidence is evidence which leads the trier of fact to find that the existence of the
contested fact is more probable than its nonexistence. People v. Taylor, 618 P.2d 1127, 1135 (Colo. 1980). This
standard does not merely look to who has presented more evidenceit looks to whether, on an objective basis,
the party has established a certain fact probably exists.
104 Nev. 51, 55 (1988) Walstrom v. State
cence. The considerations that require proof beyond a reasonable doubt do not apply when the
State is merely attempting to prove jurisdiction. Given the difficulty of proving the secret
manner exception long after the commission of an offense, we see no sound reason to
compound the difficulty by imposing a higher standard upon the State.
Having established the State's burden, we now must consider what constitutes committing
a crime in a secret manner. Defendant urges this court to adopt the logic of State v. Bentley,
721 P.2d 227 (Kan. 1986), in deciding this issue. In Bentley, the Kansas Supreme Court
stated that Crimes against persons, by their very nature, cannot be concealed. 721 P.2d at
230. We reject this broad proposition, as it fails to take into account the vulnerability of
children and apparently assigns to them full adult responsibility for immediately reporting
crimes in which they are victims. However, as one author concluded:
Often, the already traumatized child retreats into silence. The perpetrator may have
extracted a promise of secrecy by using coercion, threats against the child or the child's
loved ones, subtle persuasion, or bribes. Such coercion has powerful force: the child
victim becomes confused, guilt-ridden, and terrified of losing the affection of people who
comprise his entire world. Additionally, the mystique surrounding sex often causes the
child to fear that he will not be believed or will be deemed responsible for the sexual
incident. The child may not fully comprehend that his tormentor's behavior is deviant.
Comment, The Young Victim as Witness for the Prosecution: Another Form of Abuse? 89
Dick. L. Rev. 721, 731 (1985) (footnotes omitted).
8
Some research indicates that a
substantial number of child abuse victims may be under the age of five.9 Given the limited
emotional, intellectual, psychological, and physical development of children, the Kansas
Supreme Court's assignment of responsibility is unrealistic.
____________________

8
See also Cerkovnik, The Sexual Abuse of Children: Myths, Research, and Policy Implications, 89 Dick. L.
Rev. 691 (1985). Therein, the author notes:
Male victims do not report being sexually victimized as readily as female victims because they equate
victimization with the loss or absence of masculinity. . . . The male victim often chooses not to report
because of the following fears: (1) Unable to protect himself, he fears being considered a sissy or
unmanly. (2) He may fear that people will think he is a homosexual and he fears becoming a homosexual.
(3) If abused by a woman he thinks a complaint will bring his masculinity into question. (4) Boys who are
molested by their mothers often assume responsibility for their own molestation viewing their mothers
incapable of abuse. (5) They fear no one will believe their report of sexual abuse or that most people
think such sexual activity is not harmful to the boy. (6) They fear risking their own safety and well being.
Id. at 706 (citation omitted). And in Wenck, Sexual Child Abuse: An American Shame That Can Be Changed,
12 Cap. L. Rev. 355, 359 (1983),
104 Nev. 51, 56 (1988) Walstrom v. State
number of child abuse victims may be under the age of five.
9
Given the limited emotional,
intellectual, psychological, and physical development of children, the Kansas Supreme
Court's assignment of responsibility is unrealistic.
[Headnotes 3, 4]
We conclude that a crime is done in a secret manner, under NRS 171.095, when it is
committed in a deliberately surreptitious manner that is intended to and does keep all but
those committing the crime unaware that an offense has been committed. Therefore normally,
if a crime of physical abuse, or a related crime, is committed against a victim who remains
alive, it would not be committed in a secret manner under the statute. The victim is aware of
the crime and has a responsibility to report it. However, given the inherently vulnerable
nature of a child, we conclude that the crime of lewdness with a minor can be committed in a
secret manner, even though a victim is involved.
On review, we view the facts in the light most favorable to the prosecution. Koza v. State,
100 Nev. 245, 250, 681 P.2d 44, 47 (1984). If substantial evidence supports a trier of fact's
determination that a crime was committed in a secret manner, we will not disturb this finding
on appeal. Cf. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). We have defined substantial
evidence as evidence a reasonable mind might accept as adequate to support a conclusion.
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
[Headnote 5]
We conclude, after review of the record, that substantial evidence supports the lower
court's conclusion that Walstrom committed the crime in a secret manner. First, the slides
show that Walstrom or his victim used a remote control device to take the pictures. Although
not totally conclusive, use of this device implies that Walstrom was alone with the child when
the pictures were taken. The fact that he apparently desired to be alone with the child, when
photographing his crime, implies that Walstrom, from the inception of his illegal activity, was
attempting to commit the crime in a secret manner. Second, after taking the pictures,
Walstrom secreted the undeveloped film in a locked footlocker in his private vehicle. The fact
that he had not developed the film and kept it locked away implies that Walstrom had both
an initial and continuous desire to keep his illegal activities secret.
____________________
the author concludes, The child victim of intra-family child abuse probably has been abused on the average of
at least two years before she finally has the courage to report what has been happening to her.

9
According to one study conducted by the American Humane Society and the National Center on Child
Abuse and Neglect, 28.5 percent of child sexual abuse victims are under the age of five. Highlights of Official
Child Neglect and Abuse Reporting 1985, p.19.
104 Nev. 51, 57 (1988) Walstrom v. State
oped the film and kept it locked away implies that Walstrom had both an initial and
continuous desire to keep his illegal activities secret. Third, at the time Walstrom was
arrested, he denied ever personally participating in the production of child pornography, again
suggesting a continuous desire to keep his criminal activity secret. And finally, because of
this crime's inherently repugnant nature, we note that it is almost always intended to be kept
secret. See Bentley, 721 P.2d at 230 (Sexual abuse of children, by its very nature, is done in
secrecy.).
From this evidence, a reasonable mind could conclude Walstrom committed his crime in a
secret manner. In light of the above, we find no error in the district court's decision and
accordingly affirm the conviction.
____________
104 Nev. 57, 57 (1988) Ramadanis v. Stupak
GUS RAMADANIS, and MARATHON, INC., Appellants, v. BOB STUPAK and BOB
STUPAK, INC., dba BOB STUPAK'S VEGAS WORLD HOTEL and CASINO,
Respondents.
No. 18028
March 31, 1988 752 P.2d 767
Appeal from order of district court denying appellants' post-judgment motions for costs
and attorney's fees. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Tenants filed suit against hotel for wrongful eviction and false arrest of the tenant's
principal. The district court entered judgment on a jury verdict, but denied post-judgment
motions for costs and attorney fees. Appeal was taken. The Supreme Court held that: (1) an
offer of judgment which was not apportioned was invalid and did not bar the recovery of
costs and attorney fees, even though the verdict was less favorable than the offer; (2) the offer
was made under the rule governing costs and attorney fees and, therefore, did not bar an
award of prejudgment interest; and (3) the jury's verdict did not commingle past and future
damages and, therefore, an award of prejudgment interest was appropriate.
Reversed and remanded.
Peter L. Flangas, Las Vegas, for Appellants.
E. Leslie Combs, Jr., Las Vegas, for Respondents.
1. Costs.
Offer of judgment which was not apportioned among offerees was invalid as unapportioned joint offer
and, therefore, rejection of offer did not bar recovery of costs and attorney fees, even though judgment
obtained against offeror was less favorable than offer. NRCP 68.
104 Nev. 57, 58 (1988) Ramadanis v. Stupak
2. Interest.
Offer of judgment was made pursuant to rule which does not provide for denial of prejudgment interest
when final judgment is less favorable than offer and, therefore, did not bar recovery of prejudgment
interest. NRS 17.115; NRCP 68.
3. Interest.
Jury's award of damages for physical restraint, public humiliation, embarrassment, mental anguish, and
frustration resulting from false arrest did not commingle past the future damages and, therefore, award of
prejudgment interest on damages was appropriate. NRS 17.130, subd. 2.
OPINION
Per Curiam:
This case arises from the district court's ruling on post-judgment motions made pursuant to
NRCP 68, NRS 17.130(2) and NRS 18.010.
On July 2, 1982, Marathon, Inc. (Marathon) and Gus Ramadanis (Ramadanis) filed a
complaint against respondents Bob Stupak and Bob Stupak, Inc., dba Bob Stupak's Vegas
World Hotel and Casino (Stupak), and Chris Karamanos (Karamanos). In the first cause of
action, Marathon alleged wrongful eviction from leased restaurant space at Vegas World.
Marathon sought money damages for the value of restaurant supplies taken or destroyed as a
result of the wrongful eviction, for prepaid rent, and for payment due for meals served to
employees and guests of Las Vegas World. In the second cause of action, Ramadanis sought
damages for false arrest.
On February 3, 1986, Stupak made an offer of judgment in the amount of $15,000
pursuant to NRCP 68. The offer was not accepted. On February 26, 1986, Karamanos paid
$10,000 in settlement of the claims against him, and an order of dismissal with prejudice was
entered that date.
Following the trial of the case against the remaining defendants, Stupak and Vegas World,
the jury was informed of the Karamanos settlement
1
and was instructed to assess full
damages, if they found for the plaintiffs, from which the court would deduct the amount of
the settlement. By separate verdicts, the jury awarded Marathon damages of $9,528.75 and
Ramadanis damages of $8,000, for a combined judgment of $17,528.75.
By separate motions, Ramadanis and Marathon then moved for prejudgment interest
pursuant to NRS 17.130(2) and attorney's fees pursuant to NRS 18.010. Stupak opposed
appellants' motions and made a counter-motion for attorney's fees and costs pursuant to
NRCP 68. The district court denied all motions. From this order and judgment, Ramadanis
and Marathon appeal. Stupak has not filed a cross-appeal.
____________________

1
The jury was not informed of the amount paid in settlement.
104 Nev. 57, 59 (1988) Ramadanis v. Stupak
The district court denied appellants' motions for prejudgment interest and attorney's fees
based upon its finding that the judgment obtained by appellants was less favorable than the
valid offer of judgment made by Stupak for $15,000. Appellants, Ramadanis and Marathon,
allege, as their first point of error, that the offer of judgment submitted under NRCP 68 was
invalid because it was a joint offer made to both plaintiffs and not apportioned between the
plaintiffs. We agree.
[Headnote 1]
In Randles v. Lowry, 84 Cal.Rptr. 321 (Cal.Ct.App. 1970), the court considered the
validity of a joint offer of judgment made to all plaintiffs injured in an automobile accident.
2
The court held that where an offer is made jointly to all plaintiffs and does not apportion the
offer among the plaintiffs, it is impossible to say that any one plaintiff received a less
favorable result than he would have under the offer of compromise. 84 Cal.Rptr. at 325.
Accord Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937 (Alaska 1983); see also
Hutchins v. Waters, 123 Cal.Rptr. 819, 822 (Cal.Ct.App. 1975) (an offer apportioned among
the plaintiffs which was conditional upon acceptance of the offer by each plaintiff did not
support the granting of defendant's costs.)
3

Stupak's offer of judgment entailed $15,000 and accrued costs in consideration of a full
discharge from all claims as alleged in the Complaint on file herein against said
Defendants. There was no attempt made in the offer to apportion the amount offered
between Ramadanis and his corporation, Marathon, Inc., as separate plaintiffs. We hold that
the offer of judgment was invalid as an unapportioned joint offer. Therefore, the judgment of
the district court, such as it is based upon a finding of a valid offer of judgment, is reversed.
[Headnote 2]
Based upon its conclusion that the offer of judgment made pursuant to NRCP 68 was
valid, the trial court concluded that according to NRS 17.115(4)(a) appellants could not
recover prejudgment interest. Since we have held the joint offer invalid, this reasoning fails.
However, we note additionally that Stupak's offer of judgment was made specifically
pursuant to NRCP 68, which does not provide for the denial of prejudgment interest when the
final judgment is less favorable than the offer of judgment. Because Stupak's offer was not
made pursuant to NRS 17.11S but rather NRCP 6S, his remedy is confined to the scope of
NRCP 6S.
____________________

2
The offer of judgment was made pursuant to Cal. Civ. Code 997 which was substantially similar to NRCP
68. Cal. Civ. Code 997 has been repealed and replaced by Cal. Civ. Code 998 which is likewise similar in
substance to NRCP 68.

3
The offer of judgment was made pursuant to Cal. Civ. Code 998. See footnote 2, supra.
104 Nev. 57, 60 (1988) Ramadanis v. Stupak
17.115 but rather NRCP 68, his remedy is confined to the scope of NRCP 68. See Trustees,
Carpenters v. Better Building Co., 101 Nev. 742, 710 P.2d 1379 (1985).
[Headnote 3]
Alternatively, Stupak argues that Ramadanis should be denied prejudgment interest on his
jury award of $8,000 for general damages because Ramadanis failed to separate or apportion
the award between past and future damages. Where an award fails to distinguish past
damages from future damages and such past damages are combined with future damages,
there can be no award of prejudgment interest. Jacobson v. Manfredi, 100 Nev. 226, 233, 679
P.2d 251, 256 (1984); Stickler v. Quilici, 98 Nev. 595, 655 P.2d 527 (1982). In both
Jacobson and Stickler, the judgments did not specifically apportion the damages to the past or
future; however, it is unquestionable that the judgments included an award for future
damages. Both cases involved extensive physical injuries.
Ramadanis alleged damages of physical restraint, public humiliation, embarrassment,
mental anguish, and frustration which resulted from his false arrest. The jury was instructed
in accordance with damages alleged. Jury instruction number 23 directed the jury's attention
only to damages suffered, and it made no reference to future damages. There was no
commingling of past and future damages apparent in the jury's verdict; therefore, the award of
prejudgment interest on the damages for which Stupak is liable is proper.
Accordingly, we reverse and remand this matter for further proceedings in conformance
with this opinion.
4

____________________

4
The Honorable John C. Mowbray, Justice, has voluntarily disqualified himself from consideration of this
case. Nev. Const., art. 6, 4.
____________
104 Nev. 60, 60 (1988) Resnick v. Nevada Gaming Commission
IRVING ASH RESNICK, Appellant, v. NEVADA GAMING COMMISSION,
STATE GAMING CONTROL BOARD, Respondents.
No. 17675
March 31, 1988 752 P.2d 229
Appeal from order dismissing complaint. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Gaming license applicant petitioned for review of Gaming Commission's order denying
applicant discovery of Gaming Board's investigative report. The district court held that it
lacked jurisdiction to reverse the Commission's decision.
104 Nev. 60, 61 (1988) Resnick v. Nevada Gaming Commission
jurisdiction to reverse the Commission's decision. Applicant appealed. The Supreme Court
held that: (1) district court lacked jurisdiction to consider Commission's order denying
discovery; (2) applicant was not entitled to pre-hearing discovery of Board's investigative
reports; and (3) applicant's contention that he would be denied license, and, therefore,
deprived of property or liberty, was not ripe for review.
Affirmed.
[Rehearing denied June 23, 1988]
Gary Logan, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, and Ellen F. Whittemore, Las Vegas, for
Respondents.
1. Administrative Law and Procedure; Gaming.
District court lacked jurisdiction to consider Gaming Commission's order denying gaming license
applicant discovery of Gaming Board's investigative report; Commission's order was not final decision or
order nor was order made after hearing or rehearing. NRS 463.315.
2. Administrative Law and Procedure; Gaming.
Gaming license applicant was not entitled to pre-hearing discovery of Gaming Board's investigative
reports; applicant's right to cross-examine witnesses did not include right of access to all materials which
would assist him in cross-examination, and applicant had not shown that existing pre-hearing discovery
inadequately protected his rights. NRS 463.313(1).
3. Administrative Law and Procedure; Declaratory Judgment; Gaming.
Gaming license applicant's contention that he would be denied a license, and, therefore, deprived of
property or liberty, was not ripe for review, in that it was based on a purely hypothetical premise.
OPINION
Per Curiam:
The Facts
In 1984, the State Gaming Commission (hereafter Commission) determined that
Resnick was an employee who exercised significant influence over the operation of the Dunes
Hotel and Casino and ordered him to apply for a license. In May 1986, Resnick was informed
that his public hearing with the State Gaming Board (hereafter Board) would be held in
July 1986. He then filed a petition with the Commission, asking it to compel the Board to
provide him with a copy of the investigative report the Board had prepared, or at least provide
him with a hearing on the issue of whether he should be granted discovery of the report.1
These requests were denied by the Commission, which issued an order to that effect.2
104 Nev. 60, 62 (1988) Resnick v. Nevada Gaming Commission
report.
1
These requests were denied by the Commission, which issued an order to that effect.
2

Resnick then filed a petition to review the Commission's order denying discovery with the
district court, together with a complaint for declaratory judgment. Resnick sought (1) an order
reversing the Commission's decision that it would not compel the Board to provide Resnick
with a copy of the report, and (2) a declaratory judgment construing NRS 463.313(1)(b) to
permit prehearing discovery by Resnick of the Board's investigative materials. The court held
that it lacked jurisdiction to provide the relief requested. Resnick now appeals the lower
court's decision.
3

Discussion
We have often reiterated that Nevada law requires the courts to play a limited role in
gaming license decisions by the Commission and Board. For example, in Gaming Control Bd.
v. District Ct., 82 Nev. 38, 40, 409 P.2d 974, 975 (1966), we noted The State Constitution,
art. 6, 6, does not authorize court intrusion into the . . . licensing . . . of gaming. And in
State of Nevada v. Rosenthal, 93 Nev. 36, 41, 559 P.2d 830, 834 (1977), we noted that
judicial review of the Commission's final orders and decisions was appropriate only in
specified instances.
[Headnote 1]
Despite this general principle of non-intervention, Resnick asserts that the lower court had
jurisdiction to consider and reverse the Commission's order under NRS 463.315. NRS
463.315(1) provides any person aggrieved by a final decision or order of the commission
made after hearing or rehearing by the commission pursuant to NRS 463.312 to 463.3145,
inclusive, and whether or not a petition for rehearing was filed, may obtain a judicial review
thereof. However, we are convinced that the Commission's order denying discovery was not
a decision or order which could be appropriately reviewed under NRS 463.315. The
Commission's order to deny discovery was not, under NRS 463.315, a "final decision or
order."
____________________

1
Resnick is concerned because in 1978, to become Director of Casino Operations at the Aladdin Hotel, he
apparently underwent the licensing process. He alleges that, having undergone the process, he now realizes he
must have a copy of the report to ensure that he has the best possible chance of being licensed. He claims that
the Board and the Commission's decisions are unduly influenced by the information contained in the report,
which may not be accurate.

2
The Commission allowed counsel for Resnick and the Board to submit briefs on whether discovery should
be required but did not hold a formal hearing on the issue.

3
The Board and Commission hearings are on hold, pending the resolution of this dispute.
104 Nev. 60, 63 (1988) Resnick v. Nevada Gaming Commission
under NRS 463.315, a final decision or order. By using the words final decision or order,
the legislature has indicated that dispositions such as disciplinary orders, decisions to suspend
or revoke licenses, and resolutions on the merits of certain controversies may be reviewed by
the courts. The legislature did not intend, by using the words final decision or order, that an
interlocutory Commission determination about the discoverability of certain materials would
be immediately subject to judicial scrutiny.
4

Even if we assumed that the Commission's order was a final order under NRS 463.315,
there is no proof it was made after a hearing or rehearing by the commission pursuant to
NRS 463.312 to 463.3145. Both parties argue at some length about which hearings are
hearings pursuant to NRS 463.312 to 463.3145. Resnick argues that all hearings are
hearings pursuant to NRS 463.312 to 463.3145 and that therefore any decision or final order
from a hearing is subject to judicial review. Respondents argue, however, that NRS 463.312
to 463.3145, as mentioned in NRS 463.315, only covers disciplinary hearings, and that only
final orders from such hearings are subject to judicial review.
The issue of what hearings are covered by NRS 463.315 need not now be decided because
the Commission, prior to issuing its order, did not conduct any hearing whatsoever. When
hearings are conducted by the Commission, certain procedures must be followed. For
example, NRS 463.3133 requires that at least three members of the Commission attend all
hearings, and that proceedings be reported. NRS 463.313 also provides that if a hearing is
held, the parties have certain rights, including the right to be present when the hearing is held.
However, the record clearly indicates that no hearing was held by the Commission prior to
issuing its order.
5
Moreover, Resnick has not shown that the Commission was required to
hold a hearing on the matter. Therefore, it cannot be seriously contended that the
Commission's order was an order made after hearing or rehearing.
Finally, to hold that the district court had jurisdiction under NRS 463.315 to consider and
reverse the Commission order would be contrary to our holding in George v. Nevada Gaming
Comm'n, S6 Nev. 374
____________________

4
We note that under NRS 463.318, Judicial review is not available for actions, decisions and orders of the
commission relating to the denial of a license or to limited or conditional licenses. If the legislature did not
intend the courts to have jurisdiction to review final decisions pertaining to a denial of licensing, it is hard to
believe it intended to allow the courts to review interlocutory orders denying discovery.

5
Resnick, in fact, concedes in his statement of the facts that the Commission's order, signed by Paul Bible . .
. was denied without hearing.
104 Nev. 60, 64 (1988) Resnick v. Nevada Gaming Commission
Comm'n, 86 Nev. 374, 468 P.2d 995 (1970). In George, the Board recommended denying an
applicant a license. Before the Commission hearing, the applicant petitioned the district court
for a writ of mandamus compelling the Commission to order the Board to supply George with
all materials the Board had obtained about George's background. The district court, however,
held that it did not have jurisdiction to issue the writ. We affirmed the lower court's decision,
suggesting that the licensing procedure was normally beyond the scrutiny of the courts.
Although Resnick is not requesting equitable relief as George did, the end Resnick seeks is
the same sought by George. George sought an equitable order compelling the Commission to
order the Board to provide materials; Resnick seeks to compel the Commission to order the
Board to produce certain materials. The legislature, however, did not intend judicial
intervention in such matters. Therefore, the lower court correctly determined that it did not
have jurisdiction, under NRS 463.315, to consider the Commission's ruling.
[Headnote 2]
Resnick also asked the lower court, under NRS 463.343,
6
to interpret NRS 463.313(1) to
allow pre-hearing discovery of investigative reports. However, NRS 463.313(1) does not
permit discovery of the report. It provides:
At all hearings before the commission other than investigative hearings:
. . . .
(b) Every party has the right to:
(1) Call and examine witnesses;
(2) Introduce exhibits relevant to the issues of the case, including the transcript of
testimony at any investigative hearing conducted by or on behalf of the board or the
commission;
(3) Cross-examine opposing witnesses on any matters relevant to the issues of the
case, even though the matter was not covered in a direct examination;
(4) Impeach any witness regardless of which party first called him to testify; and
(5) Offer rebuttal evidence.
Resnick argues that in order to fully exercise these rights, he must have access to the report.
He contends that the procedural safeguards of NRS 463.313(1) are attenuated unless an
applicant has access to the materials that would help him fully exercise these rights.
____________________

6
NRS 463.343 provides: [A]ny applicant . . . which is registered with the commission may obtain a judicial
determination of any question of construction . . . arising under this chapter . . . by bringing an action for a
declaratory judgment.
104 Nev. 60, 65 (1988) Resnick v. Nevada Gaming Commission
has access to the materials that would help him fully exercise these rights. He concludes,
therefore, that NRS 463.313 must be interpreted to allow pre-hearing discovery.
Resnick's argument is flawed in several respects. First, he incorrectly assumes that because
he has the right to cross-examine a witness, he has a right of access to all materials which
would assist him in this cross-examination. This logical leap, in our opinion, simply is not
justified. Second, Resnick assumes that the safeguards provided by the legislature in NRS
463.313 are not adequate. We disagree. Although an applicant does not have the right to
discover the Board's report, he does have other rightsthe right to call witnesses, offer
evidence, cross-examine and impeach witnesses, and provide exhibits. Resnick has not shown
that these protections inadequately protect an applicant's rights. And most importantly, if the
legislature intended an applicant to have access to the Board's report or to otherwise be
entitled to conduct discovery, it could have so specified.
7
Therefore, Resnick's argument that
NRS 463.313 should be interpreted to allow pre-hearing discovery is without merit.
[Headnote 3]
Finally, Resnick argues that under the fourteenth amendment of the U.S. Constitution, and
art. I, 8 of the Nevada Constitution, he is guaranteed the right of due process before being
deprived of property or liberty. He contends that the continuation of employment in the
gaming industry is a property or liberty interest which is protected by the due process clauses
of the federal and state constitutions. He thus maintains that, in order to have due process of
law, he must be allowed discovery of the report prepared by the Board as a predicate to the
Commission's right to take any action that could deprive him licensure.
Resnick's entire constitutional argument is based on a purely conjectural premisethat in
the future, he will be denied a license, and therefore deprived of property or liberty. He is
assuming an outcome which may not occur. At this point, the Board and Commission
hearings are on hold, and we do not know what the Commission decision will eventually be.
Resnick's argument that he will be deprived of property or liberty is therefore purely
conjectural.
In Doe v. Bryan, 102 Nev. 523, 525, 729 P.2d 443, 444 (1986) (quoting Kress v. Corey, 65
Nev. 1, 26, 189 P.2d 352, 364 (1948)), we noted Nevada has a long history of requiring an
actual justiciable controversy as a predicate to judicial relief.
____________________

7
Other state legislatures, for example, have expressly provided for discovery in an administrative proceeding.
See W. Gellhorn, C Byse, P. Strauss, Administrative Law: Cases and Comments 682 (7th ed. 1979). Some
scholars feel, however, that this may cause delay, which the administrative process generally attempts to avoid.
Id. at 682-83.
104 Nev. 60, 66 (1988) Resnick v. Nevada Gaming Commission
actual justiciable controversy as a predicate to judicial relief. Moreover, litigated matters must
present an existing controversy, not merely the prospect of a future problem. . . . The issue
involved in the controversy must be ripe for judicial determination.'
As Tribe notes, In gauging the fitness of the issues in a case for judicial resolution, courts
are centrally concerned with whether the case involves uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all.'
8
In order to be ripe,
however, a party need not necessarily show that he has been harmed in the past by a
constitutional violation. If harm is likely to occur in the future because of a deprivation of a
constitutional right, then a ripe case or controversy may exist. But the party must show that it
is probable future harm will occur. See Regional Rail Reorganization Cases, 419 U.S. 102,
143 (1974) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923) (One does not
have to await the consummation of threatened injury to obtain prevention relief. If the injury
is certainly impending that is enough.); cf. Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
In this action, Resnick has not shown that it is probable that he will be denied a license in
the future. In fact, because he was previously granted a license in 1978, one could reasonably
conclude that he will again be approved for a license, unless facts have arisen during the
intervening period that would lead the Commission to a different conclusion.
Once the hearings are completed, and if Resnick is eventually denied a license, then he can
challenge the denial on the basis that he has been deprived of property or liberty without due
process of law. At that point, Resnick may have a factual foundation for an assertion that he
has been deprived of something. At this point, however, his argument is based on a purely
hypothetical premise that we decline to consider. The order of the district court is affirmed.
____________________

8
L. Tribe, American Constitutional Law 78 (2nd ed. 1988) (quoting 13A C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure 3532 (2d. ed. 1984)).
____________
104 Nev. 67, 67 (1988) Smith v. Cladianos
DENA SMITH, Appellant, v. PETE CLADIANOS and ZANTE, INC., a Nevada Corporation,
dba SANDS HOTEL AND CASINO, Respondents.
No. 17945
March 31, 1988 752 P.2d 233
Appeal from summary judgment. Second Judicial District Court, Washoe County; Robin
Anne Wright, Judge.
Employee brought action against former employer for wrongful discharge. The district
court granted summary judgment against employee. Employee appealed. The Supreme Court,
Springer, J., held that: (1) employee handbook contained no provision which would modify
common law employment termination rights flowing from employee's at-will employment
contract, and (2) discharge of employee could not form basis for action for bad faith
discharge.
Affirmed.
Jonathan H. King and Arnold Brock, Jr., Reno, for Appellant.
Laxalt & Nomura, and Mary Phelps Dugan, Reno, for Respondents.
1. Master and Servant.
Generally, at-will employment contract can be terminated whenever and for whatever cause by employer
without liability for wrongful discharge if employment is not for definite term and if there is no contractual
or statutory restrictions on right of discharge.
2. Master and Servant.
Employee handbook contained no provision which would modify common law employment termination
rights flowing from employee's at-will employment contract.
3. Master and Servant.
Discharge of employee for insubordination could not form basis for at-will employee's bad faith
discharge action; employee made no suggestion that discharge was for any untoward purpose or for
retaliation, but rather, claimed that discharge was result of misunderstanding.
OPINION
By the Court, Springer, J.
1
:
Appellant Dena Smith (Smith) was employed by the Sands Hotel-Casino (Sands).
After approximately four and one-half years of employment, respondent Peter Cladianos
{"Cladianos") fired her for paying funds to CJP Air in contravention of direct orders
prohibiting such action.
____________________

1
This appeal was previously dismissed as an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a public opinion. Accordingly, we hereby issue this opinion in
place of our order dismissing this appeal filed January 21, 1988.
104 Nev. 67, 68 (1988) Smith v. Cladianos
years of employment, respondent Peter Cladianos (Cladianos) fired her for paying funds to
C/P Air in contravention of direct orders prohibiting such action. Asserting that the
prohibitory order was issued after such payout, Smith claims that she was wrongfully
terminated. Finding, in essence, that Smith was an at-will employee, the district court
granted summary judgment against Smith.
Initially, Smith contends that an implied contract for employment existed in view of the
parties' conduct, the Sands' personnel policies, the length of Smith's employment and reliance
by Smith on the employee handbook. In support, Smith relies on Aluevich v. Harrah's, 99
Nev. 215, 660 P.2d 986 (1983). Smith's reliance, however, is misplaced because Aluevich
concerned a lease contractnot an employment contract.
It is clear from a review of the record that Smith was an at-will employee.
2
In her
deposition, Smith admitted that no written contract of employment existed. She said that she
was employed full-time with no specific termination date. Moreover, she admitted that she
was not a permanent employee. If desired, Smith could leave her employ with the Sands at
any time.
[Headnote 1]
Generally, an at-will employment contract can be terminated whenever and for whatever
cause by an employer without liability for wrongful discharge if the employment is not for a
definite term and if there is no contractual or statutory restrictions on the right of discharge.
Smith insists that a provision found in the employee handbook contractually restricts
Cladianos' ability to discharge her without first hearing Smith's explanation.
3

[Headnote 2]
Smith contends that the handbook is part of the original oral employment contract. See
Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983). Even if we were to
consider the provisions of the employee handbook as part of Smith's employment contract
with the Sands, no provision in the handbook modifies the Sands' common law right to
discharge Smith at its whim.
____________________

2
An at-will employee can properly be discharged without cause at the will of the employer. See K Mart v.
Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

3
The employment handbook provision underlying Smith's position provides:
PROBATIONARY PERIODAll employees are hired on a 90-day probationary period. This
probationary period benefits both you, the employee, and the Sands. It will allow you to evaluate the
Sands and for your supervisor to evaluate your performance in the job you have been assigned. However,
at any time during this probationary period your supervisor feels that you will not be able to meet the
qualifications and standards necessary for the job you have to perform, he may terminate your services
without prior notice.
104 Nev. 67, 69 (1988) Smith v. Cladianos
modifies the Sands' common law right to discharge Smith at its whim.
The handbook provision upon which Smith relies so heavily concerns the initial 90-day
probationary period of employment. Because Smith had long since completed her
probationary employment period, such provision has no relationship to the manner of Smith's
termination. Furthermore, a review of the employee handbook reveals no provision which
would modify the common law employment termination rights flowing from her at-will
employment contract. Consequently, it was not error for the district court to find the absence
of any procedure either spelled out or guaranteed in the handbook which would restrict the
Sands' at-will employment termination rights.
[Headnote 3]
In the alternative, Smith contends that it was error for the district court to grant summary
judgment against her because there exist genuine issues of material fact with regard to her tort
claim of bad faith discharge. We disagree.
In K Mart v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987), this court recognized the tort of
bad faith discharge where the employer breached the implied covenant of good faith and fair
dealing. K Mart, 103 Nev. at 47, 732 P.2d at 1370. The underlying rationale for extending tort
liability in that case was founded upon the premise that ordinary contract damages did not call
K Mart to account adequately for its grievous and perfidious conduct. K Mart, 103 Nev. at 49,
732 P.2d at 1371. To serve its own financial ends, K Mart, [a]fter involving itself in a
relationship of trust and special reliance between itself and its employee and allowing the
employee to rely and depend on continued employment and retirement benefits . . .
wrongfully and in bad faith, breached the employment agreement. K Mart, 103 Nev. at
51-52, 732 P.2d at 1372. We severely restricted the tort remedy afforded in K Mart, however,
to those rare and exceptional instances where the employer's conduct goes well beyond the
bounds of ordinary breach of contract liability. K Mart, 103 Nev. at 48, 732 P.2d at 1370.
In the case at bar, Smith was nothing more than an at-will employee. As such, she was
subject to employment termination at any time, so long as the purpose for termination did not
offend the public policy of the State of Nevada. Unlike the employee in K Mart, Smith was
fired for insubordination. Smith makes no suggestions that such discharge was for any
untoward purpose or for retaliation.
4
Rather, Smith contends that her dismissal was a result
of a misunderstanding.
____________________

4
Furthermore, except in narrowly circumscribed circumstancese.g., where an employer has fired an
employee in apparent bad faith, for its own financial advantage, in order to deprive the employee of his promised
104 Nev. 67, 70 (1988) Smith v. Cladianos
result of a misunderstanding. Viewing the incident in that light, we see no bad faith on the
part of the Sands. Consequently, a claim for bad faith discharge does not lie, and thus there
exists no genuine issue of material fact with respect to such claim.
Based on a review of the record, as well as for the reasons set forth above, we find no error
by the district court in ordering summary judgment against Smith. Accordingly, we affirm the
judgment of the district court.
5

Gunderson, C. J., Steffen and Young, JJ., concur.
____________________
expectation of employment benefits; or where the employer has fired an employee to retaliate against him for
invoking his legislatively established right to SIIS benefitsthis court has never held that an employee can
defeat the at will character of an employment contract through the invocation of an allegation of retaliation.

5
The Honorable John Mowbray, Justice, voluntarily disqualified himself from consideration of this case.
____________
104 Nev. 70, 70 (1988) Sheriff v. Hawkins
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v.
DAVID KENNEY HAWKINS, Respondent.
No. 17628
March 31, 1988 752 P.2d 769
Appeal from order granting a pretrial petition for a writ of habeas corpus; Second Judicial
District Court, Washoe County, Robert L. Schouweiler, Judge.
Accused, who was arrested in decoy operation when he took money from apparently drunk
man lying in doorway, filed pretrial petition for writ of habeas corpus. The district court
granted petition, and state appealed. The Supreme Court, Gunderson, C.J., held that decoy
operation created extraordinary temptation which resulted in entrapment of defendant.
Affirmed.
Steffen and Mowbray, JJ., dissented.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy G.
Randolph, Deputy, Reno, for Appellant.
David Parraguirre, Public Defender, John Petty, Deputy, Reno, for Respondent.
104 Nev. 70, 71 (1988) Sheriff v. Hawkins
1. Criminal Law.
Decoy operation, which placed apparently intoxicated man in doorway with $126 dangling from back
pocket and which had backup officer who communicated to decoy to whom he should expose money based
on criminal profile developed by police, created extraordinary temptation which resulted in entrapment of
accused; accused's conduct at time of incident showed he was not disposed to criminal activity, accused did
no more than slip exposed money from decoy's pocket and walk away, accused did not engage in any act of
violence or any attempt to find other valuables on decoy's person, decoy operation planted idea of crime
into mind of accused, and decoy operation did not address any actual crime problem.
2. Criminal Law.
Fact that accused had prior arrest record did not make decoy operation, in which accused took money
from apparently intoxicated man lying in doorway, permissible.
3. Witnesses.
Arrests and convictions for misdemeanors may not ordinarily be admitted even for limited purpose of
attacking witnesses' credibility. NRS 50.095.
4. Witnesses.
Felony convictions may be admitted to attack credibility, but court may properly exercise discretion to
exclude such evidence. NRS 48.035, subds. 1, 2, 50.095.
5. Criminal Law.
Evidence of character traits is not admissible except in specifically defined circumstances, and neither
fact that accused has claimed innocence nor fact that in so doing he has asserted entrapment defense would
justify admission. NRS 48.045.
6. Criminal Law.
In order to be lawful, decoy operation must focus upon some real, substantial, and subsisting problem of
antisocial behavior, and decoy operation must be structured so as to identify actual social predators who
are engaging in such behavior.
OPINION
By the Court, Gunderson, C. J.:
On May 27, 1986, a twenty-six-year-old black male, David Kenney Hawkins, had the
night off from his job at a downtown casino in Reno. Hawkins, it appears, had been steadily
and successfully employed at the casino for some time. On the evening in question, he went
out to enjoy his leisure time with a white male friend and, as they walked by the corner of
First and Center Streets, the two young men saw a well-dressed man lying in a doorway
alcove, apparently intoxicated. Several bills protruded temptingly from a brown envelope that
was dangling from the apparent drunk's back pocket. However, Hawkins and his friend
continued on their way to the Brass Moose Saloon, which was nearby.
104 Nev. 70, 72 (1988) Sheriff v. Hawkins
About one-half hour later, they left the drinking establishment. As they re-traced their
steps, the ostensible drunk still lay in the alcove, apparently unconscious. Upon
approaching him, Hawkins' friend jumped up and down, and made loud noises, apparently to
see if the drunk was unconscious. Then, when the purported drunk remained
unresponsive, Hawkins reached down and slipped the bills out of the prone man's pocket. Six
police officers thereupon immediately emerged from hiding and arrested Hawkins, but
promptly released his white friend. The man in the alcove had been a police decoy.
Hawkins had succumbed to bait planted as part of a decoy operation.
1

We are advised by the prosecutor that the Reno police department had contrived the
decoy operation under the tutelage of a young deputy prosecutor, in order to test how
they might avoid, limit, or minimize this court's decisions in Oliver v. State, 101 Nev. 308,
703 P.2d 869 (1985), and in Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In the
course of setting up this test case, other persons were arrested, but only Hawkins was
prosecuted. In the ensuing judicial proceedings that form the basis for this appeal, the district
court granted Hawkins' petition for a writ of habeas corpus, concluding that this decoy
operation could not be distinguished from the ones condemned in Oliver and Moreland and
was therefore controlled by our decisions in those cases. We agree.
[Headnote 1]
In our view, the decoy operation used to ensnare Hawkins is indistinguishable from those
employed in Oliver and Moreland, supraat least in any ways that justify any result more
favorable to the prosecution. In each operation, a decoy officer posed as a drunk with
money protruding from one of his pockets, appearing to be completely helpless, vulnerable
and nonresponsive. In each case, it appeared from the duped defendant's conduct that, at the
time of the incident, he was not disposed to criminal activity. In each case, when the
defendant ultimately succumbed to temptation, he did no more than slip the exposed money
from the decoy's pocket and walk away. As in Oliver and Moreland, Hawkins and his friend
neither engaged in acts of violence, nor in attempts to find other valuables on the decoy's
person, when they finally succumbed to the artificially created temptation. As in Oliver and
Moreland, it thus appears that the decoy operation planted the idea of crime in the minds of
Hawkins and his friend. The police did not uncover crime; they created it.
____________________

1
In this opinion we shall from time to time refer to the brandished money as bait, just as the record reveals
the police and district attorney's office consistently alluded to it.
104 Nev. 70, 73 (1988) Sheriff v. Hawkins
A close reading of the grand jury transcript reveals why the money was exposed in this
decoy operation. Members of the Grand Jury repeatedly asked the prosecutor why the money
was made visible. In the words of one grand juror, you can get almost anybody to pick a
hundred dollar bill off of you if you are laying there passed out. The prosecutor admitted to
the grand jurors, This is designed to get the hit.
2
In other words, as in Oliver and
Moreland, the money was exposed for the express purpose of entrapping someone who might
not otherwise be disposed to commit crime. In fact, the bait had been increased from the
meager $10.00 tendered to the sucker entrapped in Oliver, up to $126.00. This hardly is a
factual distinction which favors the prosecution herein.
As the cases we relied on in Oliver and Moreland point out, the format of this particular
kind of decoy operation is especially troubling because it does not address any actual crime
problem. In fact, before formulating this decoy operation, the police department admittedly
made a survey of crimes committed in the Reno area in April and May of 1986. They counted
54 grand larcenies, 30 robberies, and 9 larcenies from the person which did not amount to
robbery. Not one of the offenses thus reviewed involved an ostensibly helpless drunk with
money hanging out of his pocket. Indeed, the prosecutor admitted to us during oral argument
that he does not know of a single complaint ever made by a theft victim who was lying in the
street with money bulging from his pockets.
3

Unfortunately, even after taking their survey the police failed to focus their decoy
operations in a way substantially more relevant to social realities than were the artificial
temptations we condemned in Oliver and Moreland. Indeed, as noted earlier, the value of the
bait was increased to $126.00, supposedly to make any theft a grand larceny, but with the
result that the artificially created temptation was increased. It appears to us that this change
enhanced and did not reduce the extraordinary temptation condemned in Oliver and
Moreland.
Thus, in this case, we continue to agree with the decisions of the Florida courts to which
we have previously referred with approval, and which conclude that such decoy operations
constitute impermissible entrapments:
____________________

2
Another grand juror stated to the prosecutor that he could not understand, in light of our Oliver decision,
which the prosecutor had mentioned, why the decoy team had been counseled to leave the bait money
exposed. Instead of answering the salient question with any coherent explanation, the prosecutor offered to give
the grand juror a copy of Oliver to read.

3
Interestingly, too, the public defender representing Hawkins asserted during oral argument, and the
prosecutor did not attempt to deny, that the police have only conducted this type of operation in the summer
months, while the sidewalks are warm.
104 Nev. 70, 74 (1988) Sheriff v. Hawkins
approval, and which conclude that such decoy operations constitute impermissible
entrapments:
[T]he decoy did not detect or discover, nor could he reasonably be intended to discover,
the type of crime the police were attempting to prevent by the use of the decoy, i.e.,
robberies and purse snatchings. Indeed, lifting some money protruding from the pocket
of a seemingly unconscious, drunken bum is just not sufficiently similar to either robbery
or purse snatchings. Upon these facts, the decoy simply provided the opportunity to
commit a crime to anyone who succumbed to the lure of the bait.
State v. Holliday, 431 So.2d 309, 310-11 (Fla.App. 1983), citing State v. Casper, 417 So.2d
263, 265 (Fla.App. 1982); cited in Oliver, supra, 101 Nev. at 310, 703 P.2d at 870.
The prosecutor has also mentioned a difference between this case and Oliver which he
evidently believes offers the possibility of a distinction favoring the prosecution, but which in
our opinion does not. In this case, we are told, one officer watched over the decoy, and
communicated with him by radio. This back-up officer decided to whom the decoy would
expose the bait, and signaled the decoy to hide it from passersby whom the back-up officer
did not wish to tempt. In particular, the prosecutor admitted to us that the officers were
seeking to ensnare persons who fit a criminal profile developed by the policei.e., males
between 18 and 30, who are black, white, or hispanicand also any other persons who, for
any other reason, impressed the back-up officer as being criminal types. According to the
prosecutor, then, Hawkins was therefore exposed to the bait and thereafter arrested and
prosecuted because he was encompassed by the criminal profile the police had formulated:
he was black, male, and 26 years old. Interestingly, however, Hawkins' friend, a young white
male, was not arrested, although he could certainly have been held as an accomplice. In any
case, we feel the efforts of the Reno police in the area of social science research hardly
provide a valid basis for distinguishing Oliver and Moreland.
4

By structuring their decoy operation in the way they didcontrary to our previous rulings,
and the cases therein cited, see e.g.,
____________________

4
There is nothing new, of course, about the discovery of the Reno police that young adults constitute the
age-group most prone to the commission of street crime. Data compiled and analyzed long ago by academically
credible social scientists establish that this nation's young adults are more prone to engage in street crime than
are the middle aged and senior citizens. Nonetheless, we do not believe a legitimate inference follows that young
adults should therefore be subjected to artificial temptations, in order to arrest them and, perhaps, incarcerate
them until they are older.
104 Nev. 70, 75 (1988) Sheriff v. Hawkins
e.g., Cruz v. State, 465 So.2d 516, 522 (Fla. 1985)the police again failed to cast their nets
in permissible waters. The use of exposed money and a supposedly helpless, vulnerable
decoy created an extraordinary temptation which resulted in the entrapment of young men
who were not at the time discernibly bent on committing a crime. See Oliver, supra, 101 Nev.
at 309; Froggatt v. State, 86 Nev. 267, 271, 467 P.2d 1011, 1013 (1970). As noted, Hawkins
and his friend did not approach the decoy the first time they saw him. Nearly an hour later,
when they saw the decoy again, they merely succumbed to the lure of the bait. Even then,
these young men did not molest the decoy in any other way. Thus, there is nothing to suggest
they would have stopped at all, if the money had not been openly exposed.
[Headnote 2]
Finally, although we need not ground our opinion on the fact, we wish to note that while
the police arrested a number of others, only Hawkins was prosecuted. The prosecutor
indicated he thought Hawkins would make the best test case because Hawkins had a prior
arrest record. Prior arrests, of course, cannot generally be used to prove bad character. NRS
48.045(2); Yates v. State, 95 Nev. 446, 596 P.2d 239 (1979). Nonetheless, with no citation to
any contrary legal authority, the prosecutor has suggested vaguely that Oliver is
distinguishable from this case because Hawkins had an arrest record. This being so, he seems
to say, if we will allow him to proceed to trialand if Hawkins thereafter tries to assert that
he was not criminally disposed on the night in question, but simply succumbed to the
extraordinary temptation presented by the policethen in this case the trial judge might allow
him to impeach Hawkins through the introduction of Hawkins' previous arrest record.
[Headnotes 3-5]
Now, of course, a purely technical refutation of the prosecutor's legally unsupported
notions is that, even for rebuttal at trial, evidence of character traits would not be admissible
under the Evidence Code except in specifically defined circumstances. Neither the fact that a
defendant has claimed innocence, nor the fact that in so doing he has asserted entrapment,
appear among those enumerated exceptions. See NRS 48.045. Furthermore, we note that by
specific provision of the Code, mere arrests and convictions for misdemeanors may not
ordinarily be admitted even for the limited purpose of attacking a witness's credibility. See
NRS 50.095.
5
Also, it should be mentioned in passing that this court refrained from
structuring any judicially created exception to these provisions of the Evidence Code,
when we decided the Oliver casein which the defendant likewise had a record of prior
arrests, as well as convictions.
____________________

5
Conviction of a felony may be admitted to attack credibility, id., but even as to felony convictions, a trial
court may properly exercise discretion to exclude such evidence. See NRS 48.035(1),(2); emphasis added.
104 Nev. 70, 76 (1988) Sheriff v. Hawkins
refrained from structuring any judicially created exception to these provisions of the Evidence
Code, when we decided the Oliver casein which the defendant likewise had a record of
prior arrests, as well as convictions.
Before leaving the subject of the Evidence Code, we note the prosecutor has omitted from
the record on appeal Hawkins' arrest record or rap-sheet, to which the prosecutor referred
before the Grand Jury in apparent contravention of NRS 48.045(2)for the explicitly stated
purpose of proving to the jurors that Hawkins was an ordinary crook.
6
However, the
prosecutor's vague references in the transcript to Hawkins' prior brushes with the law indicate
that six years ago, in 1981when Hawkins was 20 years oldhe was arrested on an
unspecified felony charge which the Reno police were later constrained to dismiss. Reno
police had also arrested Hawkins in 1980, and Sparks police arrested him in 1979, but these
unspecified charges likewise were dismissed. The prosecutor also told the Grand Jury that
Hawkins had several previous brushes with the law in California, none of which are identified
as having resulted in convictions. Now, on appeal, the prosecutor has not contended that the
circumstances of any of the arrests bear such similarity to the facts of this case as would
justify or compel their admission at trial, to evidence either motive or common plan. See, e.g.,
Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979), and cases cited therein. Thus, tested by the
foregoing principles articulated in the Evidence Code, the prosecutor's references to Hawkins'
arrests can hardly be deemed such evidence as would establish that the district court erred by
applying Oliver and Moreland. In any event, the prosecutor has not tendered any principled
distinction in this regard.
Finally, placing aside considerations based on the Evidence Code, we think it would be
highly questionable policy to single out for prosecution young people who, like Hawkins,
succumb to extraordinary temptationsolely because they previously have been arrested. As
Justice Felix Frankfurter once noted:
Permissible police activity does not vary according to the particular defendant concerned;
surely if two suspects have been solicited at the same time in the same manner, one
should not go to jail simply because he has been convicted before and is said to have a
criminal disposition. . . . A contrary view runs afoul of fundamental principles of equality
under law, and would espouse the notion that when dealing with the criminal classes
anything goes.
____________________

6
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 as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.; emphasis added.
104 Nev. 70, 77 (1988) Sheriff v. Hawkins
dealing with the criminal classes anything goes. The possibility that no matter what his
past crimes and general disposition the defendant might not have committed the
particular crime unless confronted with inordinate inducements, must not be ignored.
Past crimes do not forever outlaw the criminal and open him to police practices, aimed at
securing his repeated conviction, from which the ordinary citizen is protected. The whole
ameliorative hopes of modern penology and prison administration strongly counsel
against such a view.
Sherman v. United States, 356 U.S. 369, 383 (1958) (Frankfurter, J., concurring in result). Of
course, if Justice Frankfurter was correct as to persons who previously have been convicted of
crime, we think that, a fortiori, he was correct as to persons who merely have previously been
arrested.
Thus, so far as we can perceive, the prosecutor in this case has tendered no basis for a
principled distinction between the facts of this case and the facts involved in our previous
holdings, Oliver and Moreland. So far as we can see, there was neither social utility,
7
nor
legal legitimacy, in tempting Hawkins into crime, and in returning him to the criminal justice
system on the basis of purely creative police activity. Sorrells v. United States, 287 U.S. 435,
451 (1932).
[Headnote 6]
In conclusion, we wish to make it clear that we do not deem all decoy operations to be
unlawful per se. If it is not to be illegitimate, however, we believe that a decoy operation
must focus upon some real, substantial, and subsisting problem of antisocial behavior, and
that it must be structured so as to identify actual social predators who are engaging in such
behavior, rather than merely being structured to ensnare weak and gullible persons in the
hope of frightening the predators. If a decoy operation is not so structured, we will not deem
it to be justified by a contention that the operation may have successfully lured young
potential criminals of tomorrow into actual criminal conduct today.
____________________

7
In regard to the matter of social utility, it perhaps may be well to recall again that, at the time of the arrest in
question here, Hawkins was a working, contributing member of society. If the judicial system were to
countenance such entrapments, working young people baited into crime in the manner of Hawkins could thus
be transformed into prison inmates, each costing the State of Nevada many thousands of dollars yearly.
Moreover, other incalculable social damage could be done by subjecting underclass young men such as
Hawkinswho like Hawkins may be making at least some effort to work and lead productive livesto unfair
temptations, gamesmanship, and arbitrary choices made in decoy operations of the kind concerned in the instant
case. Query: Can prosecutions initiated in the manner of the instant one really be expected to enhance their
victim's respect for the law, and to inculcate better social values? Or is the converse true?
104 Nev. 70, 78 (1988) Sheriff v. Hawkins
criminals of tomorrow into actual criminal conduct today. Even in dealing with the young, the
police must detect crime; they may not manufacture it.
In light of the foregoing, we have determined that the district court correctly concluded
that our prior decisions in Oliver and Moreland were controlling in the circumstances of this
case. We therefore affirm the district court.
Addendum Re Dissent
We certainly agree with our respected brother Steffen's admission that he threads a very
fine needle in contrasting his dissent today with his concurring vote in Oliver and Moreland.
We also agree with our brother's candid acknowledgment that it is fair to say the essential
differences between Oliver and Moreland and the instant case relate only to Hawkins' attire
and the placement of the currency openly tendered as bait. We further agree that, in a judicial
system committed to the principle of stare decisis, [i]t is admittedly troubling to attempt to
distinguish the instant case from the other two on such gossamer grounds.
We disagree, however, with our brother Steffen's newly adopted perception that this Court
should not substitute its wisdom for the policy choices of a young prosecutor and a few
youthful officers, who have tried to formulate and justify an attempt to evade our prior
rulings. The policy choice of whether the resources of the Nevada courts and related services
should be expended on manufactured crimeto punish vulnerable persons who have been
duped, in the hope of frightening others who truly are social predatorsdoes not in our
opinion become vested in an attorney simply because he has landed a job as a district
attorney's deputy. Nor does it become vested in police officers merely because they have
survived the rigors of the local police academy. In our view, as laudable as they may be, such
accomplishments do not establish prosecutors and police as the living embodiment of a
separate, coordinate branch of government which possesses a vested power to define
acceptable methodology for dealing with crime that is superior to this Court's authority to
decide whether the already overtaxed resources of the Nevada court system should be
expended to fight manufactured crime. In disputed cases, the executive branch does not
define what constitutes real crime; the judiciary performs this function.
We level no personal condemnation at the fine young people who conducted the decoy
program now under examination. For healthy, energetic people in the prime of lifeduring
balmy summer months when the sidewalks are warmperhaps few pastimes could seem
more enticing than to go fishing for suckers, like Hawkins, as decoy officers commonly
speak of the dupes who succumb to their artificial bait.
104 Nev. 70, 79 (1988) Sheriff v. Hawkins
dupes who succumb to their artificial bait. And, we fully understand that few such tyros will
pause to weigh the social costs of entrapping young underclass males into manufactured
crime, to-wit:
(1) the loss to the entrapped person's employer of a trained, apparently acceptable
employee, as was the case here;
(2) the loss to society in general of the entrapped person's productivity;
(3) the cost to society for the services of publicly paid prosecution and defense counsel,
and support personnel;
(4) the expenditure of the court system's time, in the justice's court, the district court,
the supreme court, and in several stages of post-conviction proceedings in the state and
federal courts;
(5) the overhead cost of imprisoning a person who previously was self-supporting, at an
annual expenditure in the neighborhood of $14,000 per year;
(6) the lost use of a prison cell with a replacement value of perhaps $60,000 (generating
what economists call an opportunity cost of an additional number of thousands of
dollars per year), which might otherwise be used to incarcerate a real criminal;
(7) the cost to any family and dependents of the entrapped person, who lose their
breadwinner because of a vagrant fortune that he was abroad on a warm night when
young officers were out fishing for young blacks and other criminal types; and
(8) finally, the cost to society of maintaining a larger-than-necessary parole and
probation system in order to supervise entrapped persons after their release, even though
no supervision would foreseeably have been necessary if the entrapped persons had been
left in peace to begin with.
We venture to say nothing about the prospect that, if such officers were not out fishing for
crime-prone young blacks and other underclass males, they could utilize their energies
discerning real crime elsewheresurely with less certitude of success, but with much greater
social utility. Nor will we attempt to quantify the probable social cost of making criminals
and convicts out of productive persons, who may upon release never return to the ranks of the
gainfully employed.
In short, then, we do not agree with our respected brother Steffen that this Court should
leave the above-mentioned concerns to be assessed solely by the executive branchas
represented by the youthful prosecutor and officers who shaped the decoy operation with
which we are concerned in the instant case.
104 Nev. 70, 80 (1988) Sheriff v. Hawkins
At least three more observations concerning other aspects of our brother's dissent should
be made, to-wit:
(1) Our brother Steffen suggests that, commonly, entrapment is determined as a matter of
law only where there has been an active as opposed to passive tender of a criminal
opportunity. As we see it, the doctrine of decisions in decoy cases from Florida and other
jurisdictions, which we adopted in Oliver and Moreland, are not at odds with this view.
Rather, they simply recognize that in situations like the instant one, in which police officers
set out to tempt vulnerable people by blandishing valuables in circumstances communicating
a message that the property may be taken without risk, there is indeed an active and
unacceptable solicitation on the part of the police.
(2) Our brother Steffen also says that he simply is unwilling to assume, on the basis of the
record, that the officers were pursuing Hawkins because of his color. Of course, this
majority opinion is not premised upon any finding of racial bias. Still, as we recall, in
previous Nevada cases involving similar entrapment through decoys, the ensnared persons
were black. Indeed, in the instant case, Hawkins a black man, was arrested and prosecuted
although the police immediately released his white companionwho arguably was equally
implicated.
Although our brother indicates he does not subscribe to what he calls racial overtones of
our mentioning such phenomena, we continue to think that minority members of society may
find several aspects of the record before us to be quite disconcerting. For example, minorities
may strongly suspect, and quite possibly resent, that this kind of decoy operation proceeds
according to a self-fulfilling prophecy that young blacks and other underclass males in the
police profile, such as hispanics, are criminal types. As one of the police officers told the
Grand Jury when explaining why the decoy team exposed the bait to Hawkins, while hiding it
from three other persons they feared might take it: He fits the age, sex and race.
8

Thus, here, still another serious societal cost could result from sanctioning manufactured
criminal prosecutions against blacks and any others whom young police officers viscerally
sense to be within the profile of criminal types that they have targeted to be purged from
free society.
____________________

8
It explicitly appears in the Grand Jury Transcript that, before exposing the bait to Hawkins, the officers
withheld it from the view of at least three persons whom they did not wish to entrap, because they were waiting
for someone they felt was a criminal type. As one officer explicitly told the Grand Jury: [T]here were
probably three people that we didn't want to take the money that didn't look like they were criminal types or the
type that would ordinarily get into something like that without some obvious temptation. In other words, with
calculation, the police waited and then presented the obvious temptation to Hawkins.
104 Nev. 70, 81 (1988) Sheriff v. Hawkins
(3) Finally, our brother has attempted to distinguish this court's decision in Oliver and
Moreland in ways which, we respectfully believe, cannot legitimately be recognized in a
jurisprudential system contemplating only distinctions that are meaningful and
comprehensible. In setting precedents to be applied by the trial courts, we believe the law
must be kept stable and intelligible. We are unwilling, therefore, to join our brother in
propounding a distinction declaring thatwhile the entrapment defense protected Oliver, a
black who took ten dollars from an apparently impoverished black decoy in Las Vegasthe
defense is now unavailable to Hawkins, a black who took $126.00 from a well-dressed,
apparently affluent white decoy in Reno. Nor can we perceive any possibility of saying (as
our brother Steffen also suggests) that the instant case is distinguishable from Oliver because
the black entrapped in Oliver had perhaps rationalized his act by thinking he was protecting
the decoy against further harm from liquor. Neither our decision, nor the record in Oliver,
provides any basis whatever for making such a statement. Finally, we can see no basis for
suggesting, as does our brother, that the prosecutor's claims about the supposed fears of Reno
citizens, totally dehors the record, provide any basis for a meaningful distinction.
9

Young and Springer, JJ., concur.
Steffen, J., with whom Mowbray, J., agrees, dissenting.
With a degree of reluctance which I shall hereafter explain, I respectfully dissent.
To me, the real issue of this appeal concerns the proper role of the judiciary in dictating to
a separate, coordinate branch of government acceptable methodology for dealing with crime.
However, I would observe at the outset that my concern here does not implicate such
court-generated constraints as Mapp v. Ohio, 367 U.S. 643 {1961) and Miranda v. Arizona,
3S4 U.S. 436 {1966), that relate to law enforcement activities that have been held to
impinge individual rights under the United States Constitution.
____________________

9
As one justification for concluding that this Court should permit police officers, if it pleases them, to entrap
young citizens in the manner now being considered, our brother has mentioned that we were informed by the
state during oral argument that criminal activity in downtown Reno has reached such a high level that many local
citizens avoid the area. The young prosecutor did indeed make such a statement, for which we have discerned
no support at all in the record. We can locate no data showing that Reno citizens avoid the vicinity of First and
Center Streets because they fear crime of any kindand certainly no support for any suggestion that citizens fear
their pockets will be raided if they lie down in a doorway alcove to sleep off a hang-over. In the past, members
of this Court ordinarily have not accepted as evidence assertions made by counsel about matters outside the
record, and it seems particularly inappropriate to do so about matters which could only be resolved by survey
research that has not been performed, so far as anyone can tell from the record. Generally, it has been the
practice, rather, to chastise counsel who seek to bias proceedings before us through justification which the
record does not support.
104 Nev. 70, 82 (1988) Sheriff v. Hawkins
367 U.S. 643 (1961) and Miranda v. Arizona, 384 U.S. 436 (1966), that relate to law
enforcement activities that have been held to impinge individual rights under the United
States Constitution. No such rights are at stake here. The milieu presented by this case
involved a simple larceny from the person and the availability of entrapment as a defense to
conviction. The judiciary has accorded to defendants such as Hawkins the opportunity to
avoid strict legal accountability, thus nullifying improvident or improper prosecutions
directed at persons who, without predisposition, have succumbed to extraordinary
temptations or inducements employed by the state. Oliver v. State, 101 Nev. 308, 309, 703
P.2d 869, 870 (1985) (citing Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970)).
As a rule, entrapment is an issue to be decided by the trier of fact as part of its function to
determine the innocence or guilt of an accused. Sherman v. United States, 356 U.S. 369, 377
(1958). There are, of course, exceptions when the issue may be decided as an issue of law. Id.
In Sherman, the Court determined that entrapment had been shown as a matter of law because
of repeated entreaties to entice a formerly active addict back into involvement with drugs.
The picture thus presented portrayed a former addict who was trying to overcome the
degradations and deprivations of drug use and who, at last, succumbed to the majestic efforts
of the government to promote his return to drug involvement. I have little trouble invoking
entrapment as a matter of law under those circumstances. However, as Justice Frankfurter
noted in his concurrence in Sherman:
This does not mean that the police may not act so as to detect those engaged in criminal
conduct and ready and willing to commit further crimes should the occasion arise. Such
indeed is their obligation. It does mean that in holding out inducements they should act in
such a manner as is likely to induce to the commission of the crime only these persons
and not others who would normally avoid crime and through self-struggle resist ordinary
temptations.
356 U.S. at 383-84.
In the decoy case of Reyes v. Municipal Court, 173 Cal.Rptr. 48, 51 (Ct.App. 1981), the
court said:
[R]uses, stings and decoys are permissible stratagems in the enforcement of criminal law,
and they become invalid only when badgering or importuning takes place to an extent
and degree that is likely to induce an otherwise law-abiding person to commit a crime. . .
. Official conduct that does no more than offer that opportunity to the suspectfor
example, a decoy programis therefore permissible; but it is impermissible for the
police or their agents to pressure the suspect by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally
law-abiding person to commit the crime.
104 Nev. 70, 83 (1988) Sheriff v. Hawkins
impermissible for the police or their agents to pressure the suspect by overbearing
conduct such as badgering, cajoling, importuning, or other affirmative acts likely to
induce a normally law-abiding person to commit the crime.
In the instant case, the decoy operation was entirely passive in nature insofar as unsuspecting
participants were concerned.
1
I therefore have great difficulty placing this case in the
category of entrapment as a matter of law.
Admittedly, I thread a fine needle in contrasting today's dissent with my approval in Oliver
and Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In Oliver, we were unwilling to
permit the state to tempt passersby with an apparently drunken, unconscious derelict who
exhibited a ten-dollar bill hanging from his tattered pocket. The enticement thus presented
was that of an alcoholic who, upon awakening, would likely stagger to the nearest purveyor
of liquor to exchange the bill for a liquid pacifier. Even those with borderline commitments to
honest behavior could rationalize their act of larceny as one of benefit to the health of the
derelict. Moreover, the ten-dollar bill could be viewed as more of a symbol for amelioration
of the desperate than enticement to the criminal. In any event, the spectacle of the decoy
operation in Oliver seemed to have the distinct flavor of an affront to human dignity and a
rational society, factors that persuaded me to decide the issue as a matter of law. Admittedly,
those factors waft more of an odor of arrogated judicial wisdom than that of an appropriate
jurisdictional basis for dictating law enforcement policy. I suppose it could be argued that an
analogue to Oliver would be a decision by the court directing the geographic placement of
police officers in efforts to prevent and detect crime. This court simply should not substitute
its wisdom for that of the governmental agency entrusted with the rights and responsibilities
of law enforcement. Reverting, nevertheless, to the usual methodology of jurisprudes who
frequently distinguish the non-distinguishable, the instant case does present, in contrast to
Oliver, a well-dressed decoy who was ostensibly unconscious. Those who passed the fallen
man could only speculate as to the cause of his plight. The currency observably protruding
from an envelope in his rear pocket was not hanging as an invitation to removal by minuscule
manipulation. Nor was it an indivisible source of relief to the desperate.
____________________

1
Although I share the concerns of the majority in the wisdom of the type of unfocused net employed in
apprehending Hawkins, I do not subscribe to the racial overtones in the majority opinion. If, in fact, race was a
motivator in the prosecution of Hawkins, the effort is deserving of condemnation; I am simply unwilling to
assume, on the basis of this record, that the officers were pursuing Hawkins because of skin color.
104 Nev. 70, 84 (1988) Sheriff v. Hawkins
source of relief to the desperate. It was, however, a passively tempting morsel to a thief.
The Moreland case fell prey to Oliver and was essentially of the same character. The
decoy masqueraded as a derelict who was intoxicated or asleep. Protruding from his pocket
were three one-dollar bills and a simulated $100 dollar bill. What I have said about Oliver
may generally be said about Moreland with the exception of the large simulated bill and,
depending upon the quality of the bill, its potential effect on those attracted to the bait. Still,
the spectacle was that of a drunken vagrant whose use of the carelessly exposed currency was
predictable.
It could be fairly stated that the essential differences between Oliver and Moreland and the
instant case relate only to the attire and the denominations and placement of the currency. It is
admittedly troubling to attempt to distinguish the instant case from the other two on such
gossamer grounds. And perhaps what I am honestly doing is re-thinking the course we have
taken through Oliver and Moreland.
2
However, from the prospect of a judge living in a
society with limited assets and a healthy regard for individual freedom, the Oliver
scenario seemed inherently offensive to both.
____________________

2
It is difficult to place our Oliver and Moreland decisions in either of the two recognized species of judicial
responses to crime generated in part by law enforcement officers. The majority of courts have adopted the
so-called subjective theory of entrapment that focuses on the issue of a defendant's predisposition to commit
the crime. Although Oliver and Moreland have muddied Nevada's law on the subject, clearly prior to those
decisions, Nevada stood among the majority of jurisdictions in its approach to entrapment. Thus, in Hill v. State,
95 Nev. 327, 330, 594 P.2d 699, 701 (1979), we said: Since the defense of entrapment focuses on an
appellant's predisposition to commit the crime as charged, evidence that he previously supplied marijuana was
relevant in establishing his state of mind while supplying marijuana to the undercover agents. Moreover, we
inferentially rejected the minority or so-called objective theory of entrapment by referencing a California case
that had embraced that theory. Id. at 330 n. 8, 594 P.2d at 701 n. 8 (citing People v. Barraza, 591 P.2d 947 (Cal.
1979)). The objective theory looks only to the conduct of the police and therefore views the predisposition of an
accused as irrelevant. But even under the objective theory of entrapment Oliver and Moreland find no harbor, as
can be seen from the court's holding in Barraza:
[W]e hold that the proper test of entrapment in California is the following: was the conduct of the law
enforcement agent likely to induce a normally law-abiding person to commit the offense? For the
purposes of this test, we presume that such a person would normally resist the temptation to commit a
crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than
offer that opportunity to the suspectfor example, a decoy programis therefore permissible; but it is
impermissible for the police or their agents to pressure the suspect by overbearing conduct such as
badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person
to commit the crime.
591 P.2d at 955 (footnote omitted). The decoy operations in Oliver and Moreland would not rise to the level of
entrapment under the objective test because there was no badgering, cajoling, importuning or other acts that
104 Nev. 70, 85 (1988) Sheriff v. Hawkins
judge living in a society with limited assets and a healthy regard for individual freedom, the
Oliver scenario seemed inherently offensive to both. For the price of a ten-dollar bill
displayed as an apple on an isolated tree, a man then rightfully free lost his freedom. And the
honest taxpayers of Nevada were forced to divert scarce assets to the cost of incarcerating
Oliver for at least part of a ten-year sentence. Equally troubling is the tragic realization that
our society has produced a large number of basically honest people who rationalize their
entitlement to whatever they can take with impunity. Employers consistently sustain
substantial losses from employee pilferage justified by the conclusion that the employee is
underpaid and exploited. The underprivileged in many walks of life conclude that the affluent
enjoy life at their expense, and therefore are willing to view life in part as the law of the
jungle and the survival of the fittest. While I do not condone theft or dishonesty even on the
level of Oliver, I do not see societal benefit stemming from efforts to entice and incarcerate
persons who succumb to the temptation of a ten-dollar bill dangled before them in trappings
that virtually assure an undetected opportunity for some rationalized enrichment at perhaps
not great personal expense to the victim. Even if the state elects not to prosecute after arrest,
the trauma of the arrest and the stigma of the record cause one to reflect on the value of such
an operation. Moreover, if the arrest reveals a fish that has frequented the criminal justice
waters on previous occasions, can we truly claim triumph in having developed an artifice that
has successfully strengthened the recidivism rate?
On the other hand, we were informed by the state during oral argument that criminal
activity in downtown Reno has reached such a high level that many local citizens avoid the
area. The challenges facing law enforcement agencies in preventing crime and apprehending
criminals are enormous. Because, as judicial officers, we do not shoulder the burden of our
law enforcement agencies, I am most reluctant to limit the options available to them in
protecting society. It seems to me that the measured response of the criminal justice system to
the unacceptable manufacturing of crime by police is the defense of entrapment. Rarely, I
suggest, should the issue of entrapment be decided as a matter of law. The Olivers and
Morelands should be the exception rather than the rule. Moreover, I am reluctant to decide, as
a matter of law, that the police decoy operating here was either unwarranted or inordinately
enticing. As previously stated, the decoy was well dressed and the bait less readily available
than in Oliver and Moreland.
____________________
could reasonably be viewed as overbearing. It therefore appears that our Oliver and Moreland precedents
represent some form of hybrid approach that tends to invalidate police efforts based upon a judicially perceived
lack of prudence or practical worth. As previously noted, I seriously question whether our hybrid is worthy of an
extended life.
104 Nev. 70, 86 (1988) Sheriff v. Hawkins
dressed and the bait less readily available than in Oliver and Moreland. The stage thus
presented was not that of a drunken derelict who would likely awaken and perhaps do no
more than wonder where or how he lost the money to buy another bottle. Additionally, as in
Oliver and Moreland, there was no importuning, cajoling, badgering or affirmative measures
taken to induce Hawkins to commit the crime. In short, however tenuous the differences
between the instant case and Oliver and Moreland, I cannot conclude as a matter of law that
the decoy operation utilized here constituted entrapment.
Although I am becoming progressively persuaded that we should not presume to dictate
how, when and where police officials should exercise their rightful prerogatives in protecting
society, I do not wish to be understood as favoring indiscriminate decoys that do not focus on
existing criminal activity. As noted previously, even if a passive decoy operation snares an
individual who has demonstrated past criminal propensities, but is otherwise apparently
functioning within the lawor at least is not wanted by law enforcement authoritiesI have
some difficulty viewing the creation of a recidivist as a sensible triumph of law enforcement.
I am nevertheless willing to assume that our law enforcement officials, who must answer to
the public concerning the use of their limited resources, will utilize those resources
reasonably. If they do not do so in the area of decoy operations, the law of entrapment should
protect an accused from an improper conviction.
I must also disagree with the majority's view of the evidence code in an attempt by the
State to prove predisposition. In Busby, a recent case on the subject, the court held:
In determining whether a criminal defendant is predisposed to commit a particular
crime we examine: the character or reputation of the defendant, including any prior
criminal record; whether the suggestion of the criminal activity was initially made by the
Government; whether the defendant was engaged in the criminal activity for profit;
whether the defendant evidenced reluctance to commit the offense, overcome only by
repeated Government inducement or persuasion; and the nature of the inducement or
persuasion supplied by the Government.
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (emphasis added) (quoting United
States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926,
(1978)). Obviously, an appellate court could not review the character, reputation, and prior
criminal record of a defendant if they were inadmissible at trial. In my view, they clearly are
admissible to show predisposition under the intent exception specified in NRS 4S.045{2).
104 Nev. 70, 87 (1988) Sheriff v. Hawkins
specified in NRS 48.045(2). Moreover, we have already held in Nevada that evidence of prior
offenses is admissible on the issue of predisposition unless its probative value is outweighed
by its prejudicial impact, a determination left to the sound discretion of the trial judge. Hill v.
State, 95 Nev. 327, 329-30, 594 P.2d 699, 700-01 (1979). The rule admitting such evidence
to show predisposition is so well established throughout the country that further citation is
unnecessary.
Because I cannot conclude as a matter of law that Hawkins was entrapped, I would reverse
and remand for trial.
____________
104 Nev. 87, 87 (1988) Flick Theater v. City of Las Vegas
FLICK THEATER, INC., dba FLICK THEATER, a Nevada Corporation, Appellant, v. CITY
OF LAS VEGAS, NEVADA, a Municipal Corporation and a Political Subdivision of the
State of Nevada, Respondent.
No. 18075
March 31, 1988 752 P.2d 235
Appeal from an order of the district court denying appellant's motion for preliminary and
permanent injunctions. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Adult theater operator sought an injunction against enforcement of an ordinance
prohibiting the operation of sexually oriented businesses within 1,000 feet of a school or
church. The district court refused injunctive relief, and the theater operator appealed. The
Supreme Court, Springer, J., held that: (1) the ordinance prohibiting the establishment of
sexually oriented businesses within 1,000 feet of schools or churches was intended to apply to
new businesses and to existing businesses; (2) state law did not preempt the ordinance; and
(3) the ordinance did not violate the first amendment.
Affirmed.
[Rehearing denied April 28, 1988]
Marquis & Haney, and James P. McBride, Las Vegas, for Appellant.
Rex Bell, District Attorney, Clark County; George Ogilvie, City Attorney, John Edward
Roethel, Chief Civil Deputy City Attorney, Las Vegas, for Respondent.
104 Nev. 87, 88 (1988) Flick Theater v. City of Las Vegas
1. Zoning and Planning.
City ordinance prohibiting operation of sexually oriented businesses within 1,000 feet of school or church
applied to sexually oriented businesses in operation at time of ordinance's enactment; whether
establishment of sexually oriented business meant opening of business or continued operation of
business, ordinance was intended to ban operation of those businesses in proximity to schools and churches
by declaring any existing businesses in violation of ban to be nonconforming use after expiration of five
year amortization period.
2. Zoning and Planning.
State has delegated to city express authority to regulate location of sexually oriented businesses and,
therefore, ordinance prohibiting operation of sexually oriented businesses within 1,000 feet of school or
church was not preempted by state law. NRS 278.020, 278.020, subd. 1, 278.0222, 278.250, 278.250,
subd. 1.
3. Constitutional Law; Zoning and Planning.
Adult theater operator failed to show that requiring sexually oriented businesses to operate outside
shadows of schools and churches unduly burdened protected speech and, therefore, ordinance prohibiting
operation of those businesses within 1,000 feet of school or church did not violate first amendment.
U.S.C.A.Const. Amend. 1.
OPINION
By the Court, Springer, J.:
Appellant Flick Theater sought an injunction in the district court enjoining the
enforcement of local ordinances prohibiting the operation of sexually oriented businesses
within one thousand feet of a school or church. The district court refused injunctive relief and
we affirm the district court action.
[Headnote 1]
In 1978 the City of Las Vegas enacted an ordinance which provides that [n]o person shall
cause or permit the establishment of . . . sexually oriented businesses . . . within one thousand
feet of . . . [a] church [or] school. . . . LVMC 19.74.030(A). Flick stipulates that it is engaged
in a sexually oriented business within the prohibited one thousand feet distance. It argues,
however, that since it was already engaged in a sexually oriented business in the prohibited
location when the ordinance was enacted, it cannot be said to have caused or permitted the
establishment (that is, Flick claims, the creation or commencement) of a business. As we see
Flick's position in this case, it does not make any difference whether establishment refers to
the opening of this kind of business or the continued operation of such business because at
the time of enacting LVMC 19.73.030(A) the city enacted LVMC 19.74.040 which deals
expressly with existing businesses and makes very clear the city's intention to ban
operation of these businesses in proximity to schools and churches by declaring any
existing businesses in violation of the school-church ban to be a nonconforming use after
five years from the enactment of the ordinance.1
104 Nev. 87, 89 (1988) Flick Theater v. City of Las Vegas
ing businesses and makes very clear the city's intention to ban operation of these businesses in
proximity to schools and churches by declaring any existing businesses in violation of the
school-church ban to be a nonconforming use after five years from the enactment of the
ordinance.
1

The intent of the Las Vegas City Council clearly prevails over the literal sense of the
wording of the two ordinances. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635,
503 P.2d 457 (1972). It is clear from reading LVMC 19.74.030 and LVMC 19.74.040 that the
Las Vegas City Council intended any sexually oriented business existing as of April 16, 1978,
and located within one thousand feet of any church or school, to be a nonconforming use
subject to the five-year amortization period. Since Flick, by its own admission, satisfies these
criteria, Flick is subject to enforcement of LVMC 19.74.040.
[Headnote 2]
Flick also claims that LVMC 19.74.030 and LVMC 19.74.040 improperly regulate beyond
the express delegation of power in NRS 278.0222.
2

The city did not exceed the legislative authority granted under NRS 278.0222 because the
ordinances in question are not in conflict with the state statute. In Lamb v. Mirin, 90 Nev.
329, 526 P.2d 80 (1974), we noted that in determining whether the legislature intended to
occupy a particular field to the exclusion of all local regulation the courts should look to
the whole purpose and scope of the legislative scheme. "That which is allowed by the
general laws of a state cannot be prohibited by local ordinance, without an express grant
on the part of the legislature." Lamb, 90 Nev. at 333, 526 P.2d at S2.
____________________

1
LVMC 19.74.040 reads as follows:
19.74.040 Existing as of 1978. Any business existing as of April 16, 1978, that is in violation hereof
shall be deemed a nonconforming use. Such a nonconforming use will be permitted to continue for a
period not to exceed five years, unless sooner terminated for any reason whatsoever or voluntarily
discontinued for a period of thirty days or more. Such nonconforming uses shall not be increased,
enlarged, extended or altered except that the use may be changed to a conforming use. In the event that
two or more sexually oriented businesses are within one thousand feet of one another and otherwise in a
permissible zone, the first such sexually oriented business licensed and continually operating at a
particular location shall be the conforming use and the later-established business(es) shall be
nonconforming.
We have not lost sight of Flick's contention that it cannot be in violation of the ordinance because it never
caused or permitted establishment of a sexually oriented business; we merely reject the argument as being
unpersuasive.

2
NRS 278.0222 provides as follows:
A commission may recommend or a governing body may adopt zoning regulations restricting the
construction, reconstruction, alteration, repair or use of buildings, structures or land as adult bookstores
or adult motion picture theaters to specific districts within the geographical jurisdiction of the
commission and governing body.
104 Nev. 87, 90 (1988) Flick Theater v. City of Las Vegas
legislature intended to occupy a particular field to the exclusion of all local regulation the
courts should look to the whole purpose and scope of the legislative scheme. That which is
allowed by the general laws of a state cannot be prohibited by local ordinance, without an
express grant on the part of the legislature. Lamb, 90 Nev. at 333, 526 P.2d at 82. There is
nothing in the ordinances enacted by the city that appears to prohibit any activities that are
expressly allowed by state legislation, and NRS 278.0222 cannot be said to preempt the city's
ordinance enactments here in question.
The state has delegated to the city express authority to regulate the location of sexually
oriented businesses. General authority to regulate the location and use of buildings and
structures, in order to promote the health and general welfare of the community, is granted
under NRS 278.020 and NRS 278.250.
3
These state statutes do not constitute a
comprehensive statutory scheme which purports to regulate the location of sexually oriented
businesses throughout the state and do not indicate any attempt by the state to occupy the
field. To the contrary, the intent of the state, as clearly manifested in the above statutes, is to
vest in local government the authority to regulate such matters as they see fit. These
ordinances are not, as claimed by Flick, an excessive exercise of municipal legislative power
that renders the ordinances void under state law.
[Headnote 3]
As previously stated, it is clear that LVMC 19.74.040 applies to Flick. Since Flick has
failed to offer facts demonstrating that enforcement of this ordinance against Flick infringes
upon Flick's first amendment rights, and since the city had the authority to enact ordinances
regulating the location of sexually oriented businesses in proximity to schools and churches,
it does not appear that the trial court abused its discretion in denying Flick's motion for a
preliminary injunction.4
____________________

3
NRS 278.020(1) states:
1. For the purpose of promoting health, safety, morals, or the general welfare of the community, the
governing bodies of cities and counties are authorized and empowered to regulate and restrict the
improvement of land and to control the location and soundness of structures.
NRS 278.250(1) states:
1. For the purposes of NRS 278.010 to 278.630, inclusive, the governing body may divide the city,
county or region into zoning districts of such number, shape and area as are best suited to carry out the
purposes of NRS 278.010 to 278.630, inclusive. Within the zoning district it may regulate and restrict the
erection, construction, reconstruction, alteration, repair or use of buildings, structures or land.
104 Nev. 87, 91 (1988) Flick Theater v. City of Las Vegas
appear that the trial court abused its discretion in denying Flick's motion for a preliminary
injunction.
4

The district court judgment is affirmed.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________
____________________

4
There are no valid first amendment claims asserted here, as there is no showing that requiring these kinds of
businesses outside the shadows of schools and churches unduly burdens protected speech. See, e.g., Lydo
Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984), in which the federal circuit court reversed
a district court's order granting Lydo Enterprises a preliminary injunction prohibiting enforcement of LVMC
19.74.040 against it. The circuit court noted that it was mindful that Lydo waited five years after enactment of
LVMC 19.74.030 and LVMC 19.74.040 before taking legal action to protect itself from the effect of the
ordinances. The court also noted that the difficulty with Lydo's position was that Lydo made no showing relating
to the availability of relocation sites. The appeals court concluded that Lydo's case for a preliminary injunction
was based on mere conjecture, since there was no record on which either the trial court or the appellate court
could find the ordinance created a substantial restriction on protected speech. Basically the same considerations
apply to the case now before us.
104 Nev. 91, 91 (1988) State v. District Court
THE STATE OF NEVADA, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF DOUGLAS, THE
HONORABLE DAVID R. GAMBLE, DISTRICT JUDGE, Respondent,
EDWIN FERRELL DOUGLASS, Real Party in Interest.
No. 18266
March 31, 1988 752 P.2d 238
Original petition for a writ of certiorari.
State petitioned for writ of certiorari challenging the reversal of the conviction for driving
while intoxicated. The Supreme Court held that driving while intoxicated, when charged as a
misdemeanor, is a petty offense for which a trial by jury is not constitutionally mandated,
whether the driver is charged in municipal court or justice's court.
Petition granted.
Brian McKay, Attorney General; Brent T. Kolvet, District Attorney, and Harold Kuehn,
Deputy District Attorney, Douglas County, for Petitioner.
104 Nev. 91, 92 (1988) State v. District Court
Loren Graham, Zephyr Cove, for Respondent.
Jury.
Driving while intoxicated, when charged as misdemeanor, is petty offense for which trial by jury is not
constitutionally mandated, whether driver is charged in municipal court or in justice's court. NRS
484.379; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
This petition for a writ of certiorari challenges an order of the district court ruling that
individuals charged with violating NRS 484.379 are entitled to a jury trial, reversing the
conviction of the real party in interest herein, and remanding the matter to the justice's court
for a jury trial.
In Blanton v. North Las Vegas Mun. Ct. 103 Nev. 623, 748 P.2d 494 (1987), this court
concluded that driving under the influence of alcohol, when charged as a misdemeanor, is a
petty offense for which trial by jury is not constitutionally mandated. See also Baldwin v.
New York, 399 U.S. 66 (1970); State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983). Our
holding in Blanton applies whether the individual is charged in municipal court or justice's
court. Respondent has presented no authorities or arguments not considered by this court in
reaching its decision in Blanton.
Accordingly, we grant this petition.
1

____________________

1
This petition was previously granted in an unpublished order of this court. Pursuant to a request, 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 December 31, 1987. We note that on December 31, 1987, the
clerk of this court issued a writ of certiorari, pursuant to our order, compelling the district court to vacate its
order reversing the conviction of real party in interest Edwin Ferrell Douglass, and to enter a new order
consistent with our decision in Blanton, supra.
____________
104 Nev. 93, 93 (1988) Citibank Nevada v. Wood
CITIBANK NEVADA, N.A., Appellant, v. GILBERT R.
WOOD and SUSAN WOOD, Respondents.
No. 18388
April 28, 1988 753 P.2d 341
Appeal from an order granting a countermotion for summary judgment. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Lender bank brought action against debtors-trustors to recover unsatisfied portion of debt
after trustee's sale had extinguished interest securing debt. The district court awarded surplus
proceeds from trustee's sale to debtors-trustors. Lender bank appealed. The Supreme Court
held that as junior lienholder, lender bank's interest in excess trustee's sale proceeds was
superior to interest held by debtors-trustors, and lender bank was entitled to distribution from
trustee's sale surplus.
Reversed and remanded with instructions.
Wiener, Waldman, Gordon & Silver and Anthony V. Sorrentino, Las Vegas, for Appellant.
Monte J. Morris, Henderson, for Respondents.
1. Mortgages.
Generally, funds received at trustee's sale are to be distributed as follows: costs of trustee's sale,
satisfaction of senior liens, satisfaction of junior liens, and remainder to trustor.
2. Mortgages.
As junior lienholder, lender bank's interest in excess trustee's sales proceeds was superior to interests held
by debtors-trustors; therefore, lender bank was entitled to distribution from trustee's sale surplus.
OPINION
Per Curiam:
This is an appeal by Citibank from a summary judgment which awards surplus proceeds
from a trustee's sale to respondents Wood, who are the debtors-trustors named in the deed of
trust. Basing its order granting summary judgment on Carrillo v. Valley Bank, 103 Nev. 157,
734 P.2d 724 (1987), the district court determined that Citibank's only remedy in seeking to
recover the unsatisfied portion of the Wood debt, after the trustee's sale had extinguished the
interest securing that debt, was to sue on the promissory note. Since Citibank failed to bring
such a deficiency action within the six-month statutory period, the trial court concluded that
Citibank was precluded from recovering any of the trustee's sale surplus.
104 Nev. 93, 94 (1988) Citibank Nevada v. Wood
Although we agree that the six-month period limiting Citibank's ability to sue on the
promissory note has run and thereby precludes an action on such note, we do not believe that
Citibank is foreclosed from claiming an interest in the trustee's sale surplus. The Carrillo case
did not limit a junior lienor's right to claim an interest in the surplus proceeds of a trustee's
sale.
In Carrillo, we were concerned with the ability of a junior lienor who had purchased the
property securing the debt to sue for a deficiency judgment without regard to the fair market
value of the purchased property. In connection with that particular problem, we held that a
purchasing junior lienor can appropriately seek a deficiency judgment, but only to the extent
that the combined indebtedness associated with the purchased property exceeds the fair
market value of such purchased property on the date of the trustee's sale. Carrillo, 103 Nev.
at 159, 734 P.2d at 725. By restricting the amount of the purchasing junior lienor's remedy,
we refused to allow the purchasing junior lienor to restructure the debt equation to produce a
return greater than its full entitlement. Carrillo, 103 Nev. at 158, 734 P.2d at 725. In Carrillo
this court did not deal with an unsatisfied purchasing junior lienor's right to claim an interest
in the trustee's sale proceeds; hence Carrillo does not control the instant case.
[Headnotes 1, 2]
Generally, the funds received at a trustee's sale are to be distributed as follows:
1. The costs of the trustee sale;
2. Satisfaction of the senior lien;
3. Satisfaction of the junior liens; and
4. Remainder to the trustor.
As junior lienholder, Citibank's interest in the excess trustee's sale proceeds is superior to the
interest held by the Woods as debtors and trustors. Thus, the trustee's sale surplus should be
distributed to Citibank.
Citibank's claim in the trustee's sale surplus, however, is not unlimited. Citibank or a
similarly situated creditor may not be allowed to restructure the debt equation in a manner
which would lead to an excessive recovery. In the instant case, Citibank realized $13,000.00
from the security; the property was purchased at the trustee's sale for $67,000.00 and
subsequently sold by Citibank for $80,000.00. There is nothing in the record to suggest that
the $80,000.00 sales price did not represent the fair market value of the property. Since the
Wood debt owed to Citibank was $48,197.89 at the time of the trustee's sale, and because
Citibank has since realized $13,000.00 from the property securing such debt, Citibank's claim
appears to remain unsatisfied in the amount of $35,197.89. Accordingly, Citibank's claim to
the trustee's sale surplus is limited to that amount.
104 Nev. 93, 95 (1988) Citibank Nevada v. Wood
claim to the trustee's sale surplus is limited to that amount. Because the trustee's sale surplus,
$25,817.48, does not exceed the unsatisfied portion of the Citibank debt, Citibank is entitled
to the entire residual amount.
Since the Carrillo case does not limit Citibank's remedy exclusively to that of a deficiency
judgment, Wood was not entitled to judgment as a matter of law; thus, summary judgment
was not warranted. In addition, Citibank holds an interest in the trustee's sale surplus superior
to that held by the Woods. As a result, Citibank is entitled to judgment as a matter of law.
There existing no unanswered questions of material fact, summary judgment in Citibank's
favor is justified. We therefore reverse the summary judgment and remand the case to the
district court with instructions to enter summary judgment in favor of Citibank and to
distribute to Citibank the excess trustee's sale funds, in full.
____________
104 Nev. 95, 95 (1988) Jensen v. Jensen
BARBARA E. JENSEN, Appellant, v. DONALD L. JENSEN, and JENSEN
ENTERPRISES, INC., a Nevada Corporation, Respondents.
No. 17919
April 28, 1988 753 P.2d 342
Appeal from a divorce decree. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Wife filed petition for divorce. The district court filed decree of divorce, awarded wife
primary physical custody of child, and made support awards, and wife appealed. The
Supreme Court held that: (1) agreement by which wife's compensation for work performed
for husband's company would be lumped with husband's compensation did not violate
antenuptial agreement, as modified; (2) ordering wife to execute documentation allowing
husband to claim income tax exemption for child was inappropriate; and (3) substantial
evidence supported determination that husband did not commingle community property with
his own separate property and equitable division of community property.
Affirmed in part, modified in part.
George E. Graziadei and Scott Michael Cantor, Las Vegas, for Appellant.
Dickerson, Dickerson & Lieberman, Las Vegas, for Respondents.
104 Nev. 95, 96 (1988) Jensen v. Jensen
1. Divorce.
There was substantial evidence that husband's company fully compensated wife for work performed, as
agreed, so that wife did not have wage claim against company at time of divorce, even assuming that trial
court's finding that company had not agreed to compensate wife for her work was not supported by
substantial evidence, where husband and company accountant testified wife agreed that during time she
worked for company her compensation would be lumped with husband's, during period in question
company paid husband at least $330,000, and that income was deposited in joint account and used by both
parties to pay community expenses.
2. Husband and Wife.
Modification of antenuptial agreement can be implied from conduct consistent with asserted
modification.
3. Evidence.
Parol evidence can be admitted to show oral agreement modifying contract.
4. Husband and Wife.
Arrangement by which wife's compensation for work performed for husband's company would be lumped
with husband's compensation did not violate modified antenuptial agreement, which initially required that
wife's income be treated as separate property, given wife's post-agreement oral consent to combine income,
her acquiescence in allowing income to be deposited in joint checking account, her willingness to use funds
for community expenses, and her failure to demand, at any time before divorce, separate salary or income.
5. Divorce.
Coercive equitable relief in form of ordering wife to execute documentation allowing husband to claim
income tax exemption for their child, who was in wife's primary physical custody, was inappropriate, where
lower court could have achieved similar economic result, as matter of law, by merely adjusting the amount
of alimony husband would have to pay wife. 26 U.S.C.A. 152(e).
6. Divorce; Husband and Wife.
Substantial evidence supported trial court's determination that husband did not commingle community
property with his own separate property and trial court's equitable division of community property.
OPINION
Per Curiam:
The Facts
Barbara and Donald were married in September 1981. On the day of their marriage, they
signed an antenuptial agreement (hereafter Agreement), designed to keep their income and
property separate after marriage. Soon after marriage, Barbara decided she wanted to work,
and in May, 1982, pursuant to an informal arrangement, she began working for Jensen
Precast, Donald's company.
1
For about three years she worked part-time, mostly trying to
speed up or enforce collections.
____________________

1
Donald is the sole officer, director and shareholder of this corporation.
104 Nev. 95, 97 (1988) Jensen v. Jensen
Donald and his accountant testified that, about one year after Barbara began work, she and
Donald agreed Jensen Precast would not pay her a separate salary, but her income would be
included in Donald's income. Donald and his accountant testified that Barbara agreed to this
means of compensation so Jensen Precast would not have to pay separate payroll taxes for her
wages. Throughout the marriage thereafter, Donald deposited this income into the couple's
joint checking account, and it was used to pay community expenses.
Barbara filed for divorce in September, 1986, and the district court filed the decree in
October. The court awarded Barbara primary physical custody of their child, Megan; Donald
was ordered to pay $500 a month child support, maintain health insurance for Megan, and
designate her as beneficiary for a $50,000 life insurance policy. Barbara was ordered to
execute documents, on a yearly basis, allowing Donald to claim the exemption for Megan on
his income tax returns.
Discussion
[Headnote 1]
Barbara argues that Jensen Precast owes her $83,040 for work she performed. The lower
court concluded that Jensen Precast had not agreed to compensate Barbara for her work and
therefore was not liable to her. We agree with the lower court's conclusion that Jensen Precast
is not liable for the compensation Barbara seeks.
The district court, in denying liability, found:
There was never a meeting of the minds concerning employment of the Plaintiff with the
Defendant Company and there is [sic] insufficient facts to be the basis for any contract,
express or implied, or on a quantum meruit basis.
The court then concluded:
There was no employment agreement, expressed or implied, between the Plaintiff and
Defendant, Jensen Enterprises, Inc., nor was there any other basis for claiming
entitlement to compensation from Jensen Enterprises, Inc., including quantum meruit.
Barbara argues that this finding is not supported by the record. However, even assuming
that the district court's finding is not supported by substantial evidence and Jensen Precast did
agree to compensate Barbara for her work, the record contains substantial evidence that
Jensen Precast fully compensated Barbara, as agreed. As noted, both the company accountant
and Donald testified Barbara agreed that during the time she worked for Precast her
compensation would be lumped with Donald's. From 19S2 to 19S4, Precast paid Donald at
least $330,000;2 this income was deposited in the joint account and used by both parties
to pay community expenses.
104 Nev. 95, 98 (1988) Jensen v. Jensen
1982 to 1984, Precast paid Donald at least $330,000;
2
this income was deposited in the joint
account and used by both parties to pay community expenses.
[Headnotes 2, 3]
Barbara argues this arrangement violates the terms of their antenuptial agreement, which
requires her income be treated as separate property. However, the Agreement expressly
provided that its terms could be changed.
3
We have noted that parties to a written contract
who agree to new terms may orally modify the contract. Joseph F. Sanson Inv. Co. v. Cleland,
97 Nev. 141, 142, 625 P.2d 566, 567 (1981).
4
Moreover, parties' consent to modification can
be implied from conduct consistent with the asserted modification. Clark County Sports
Enter. v. City of Las Vegas, 96 Nev. 167, 171, 606 P.2d 171, 175 (1980).
[Headnote 4]
The record clearly suggests that, after the Agreement had been entered, both Barbara and
Donald elected to treat their separate income as community property. By Barbara's
post-Agreement oral consent to combine income, her acquiescence in allowing the income to
be deposited in their joint checking account, her willingness to use the funds for community
expenses, and her failure to demand, at any time before the divorce, a separate salary or
income, Barbara, like Donald, obviously agreed to modify the Agreement and thereafter treat
her income, like Donald's, as community property.
5
Therefore, even assuming arguendo
that the lower court erroneously concluded no compensation agreement existed,6 the
record supports a conclusion that Barbara was fully compensated, as agreed, for her
part-time work for Precast.
____________________

2
In 1982, Precast paid Donald $121,500; in 1983, it paid Donald $60,800; in 1984, it paid Donald $148,000.

3
The Agreement stated:
It is the purpose of this paragraph that no community property arise out of the marriage relationship
absent some subsequent agreement between the parties to the contrary, all amounts earned through the
efforts of the individuals during their marriage shall be the separate property of the individual expending
the effort or financial resources. (Emphasis added).
The Agreement did not require any subsequent modifications to be in writing.

4
Parol evidence can be admitted to show an oral agreement modifying a contract, Silver Dollar Club v.
Cosgriff Neon Co., 80 Nev. 108, 110, 389 P.2d 923, 924 (1964).

5
Normally, in order to modify a contract, both parties must provide consideration. J. Calamari & J. Perillo,
Contracts 262 (3d ed. 1987). In this case, as consideration for the modification, Barbara gave up the right to
have her income treated as separate property, and Donald agreed (1) to allow her to continue work for Jensen
Precast and (2) to continue to treat his income as community property, rather than separate property.
104 Nev. 95, 99 (1988) Jensen v. Jensen
arguendo that the lower court erroneously concluded no compensation agreement existed,
6
the record supports a conclusion that Barbara was fully compensated, as agreed, for her
part-time work for Precast.
[Headnote 5]
Barbara also argues that the lower court exceeded it jurisdiction by ordering her to execute
documentation allowing Donald to claim an income tax exemption for their child. Although
the court awarded Barbara primary physical custody of their daughter Megan, it ordered
Barbara to execute, on a yearly basis, the forms necessary for Donald to claim a tax
exemption for Megan as a dependent, if his $500 monthly payments were timely.
Normally, the custodial parent is entitled to claim the exemption, unless this parent waives
the right. I.R.C. 152(e). And coercive equitable relief is appropriate only when a legal
remedy is inadequate. See Leftwich v. Leftwich, 442 A.2d 139 (D.C. 1982) (spouse
improperly ordered to sign joint income tax return). In this case, the lower court could have
achieved a similar economic result, as a matter of law, by merely adjusting the amount of
alimony Donald would have to pay Barbara; the more extreme remedy of coercive equitable
relief was inappropriate. Therefore, although we affirm the district court's award of $500 a
month child support, we reverse the district court's order insofar as it requires Barbara to
execute the tax forms necessary for Donald to claim the exemption. We do not remand,
however, as further adjustment of the court's judgment is unnecessary.
[Headnote 6]
Finally, Barbara contends that the district court abused its discretion in dividing the
couple's community property and erred by finding Donald did not commingle community
property with his own separate property. We have often noted that we will disturb a district
court's equitable distribution of community property on appeal only if the court abuses its
broad discretion. Shick v. Shick, 97 Nev. 352, 354, 630 P.2d 1220, 1221 (1981). And, a
district court's factual determinations will be disturbed only when unsupported by
substantial evidence.
____________________

6
The lower court's conclusion that no compensation agreement was reached by Barbara and Jensen Precast
might also be supported by substantial evidence. For example, Barbara testified that the parties did not expressly
agree about the manner or amount of compensation:
[E]ven prior to my going to work, we did not discuss salary. You know, giving me one or not per se. We
had in fact even discussed the possibility of me down the road returning and going to law school or
something, having, you know, a career of my own kind of thing. Or he even offered at one point to help
me set up a business of my own and to finance it and work with me on an individual business. That would
be mine.
104 Nev. 95, 100 (1988) Jensen v. Jensen
only when unsupported by substantial evidence. Johnson v. Johnson, 89 Nev. 244, 246, 510
P.2d 625, 626 (1973) (citation omitted). In this case, there is substantial evidence on record to
support both the district court's findings of fact and equitable division. Therefore, after
consideration of the parties' arguments and the law, we accordingly affirm the district court's
decision as modified herein.
____________
104 Nev. 100, 100 (1988) Shaw v. State
SANDY MARIE SHAW, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18229
April 29, 1988 753 P.2d 888
Appeal from judgment of conviction on one count of first degree murder with the use of a
deadly weapon. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted in the district court of one count of first degree murder with use
of deadly weapon, and she appealed. The Supreme Court held that: (1) it was not necessary to
certify defendant as adult before she could stand trial for murder; (2) state was not guilty of
prosecutorial misconduct; and (3) testimony concerning conversation overheard between two
participants in murder, involving telephone call to defendant, was admissible.
Affirmed.
Ralph J. Rohay, Las Vegas, for Appellant.
Brian McKay, Attorney General; Rex Bell, District Attorney, James Tufteland, Deputy
District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
State need not charge underlying felony in proving first degree murder using felony-murder rule. NRS
200.030, subd. 1.
2. Infants.
It was not necessary to certify juvenile, who was not yet 16 at time of murder or at time of trial, as adult
with respect to charge of first degree murder under felony-murder rule; delinquent acts within juvenile
court's exclusive original jurisdiction excluded murder, and crime of robbery, as felony underlying
felony-murder charge, did not have to be charged. NRS 62.040, subd. 1, 62.080, 200.030, subd. 1.
3. Criminal Law.
Fact that probation of witness was lifted and his bail dropped prior to trial, standing alone, was
insufficient to establish impropriety on part of prosecutor in failing to disclose agreement
made with witness, in light of trial testimony of witness that state indicated no plea
bargain deal would be offered and that no deal was struck with prosecution.
104 Nev. 100, 101 (1988) Shaw v. State
of prosecutor in failing to disclose agreement made with witness, in light of trial testimony of witness that
state indicated no plea bargain deal would be offered and that no deal was struck with prosecution.
4. Criminal Law.
Any error in admitting testimony of witness, whose testimony was alleged by defendant to be tainted as
result of undisclosed deal with prosecution, was harmless, where there was no challenge to testimony and
where such testimony was substantially duplicated by testimony of brother of witness.
5. Criminal Law.
Testimony concerning substance of conversation overheard between two participants in murder, during
which one participant telephoned defendant and related defendant's statements to other participant, was
admissible over defendant's hearsay objections; testimony concerning defendant's statements over
telephone was admissible as statements of party offered against that party, and testimony concerning
participant's recitation of defendant's telephone statements was admissible under coconspirator exception to
hearsay ban. NRS 51.035, subd. 3(a), (e) 51.067.
6. Infants.
Juvenile charged with murder was not entitled to immediate notification of one of her parents at time she
was taken into custody; juveniles charged with murder were specifically excepted from jurisdiction of
juvenile courts and therefore did not come within purview of attendant juvenile laws. NRS 62.040.
7. Criminal Law.
State's offering testimony of various witnesses recounting statements made to them by defendant did not
preclude state's attacking credibility of defendant's testimony concerning those same events. NRS
51.035, subd. 3(a).
8. Criminal law.
Jury, not public in general, must be prejudiced by state's conduct for prosecutorial misconduct to occur.
9. Criminal Law.
State's allegedly lopsided portrayal of homicide case to media, without mention of any mitigating facts
adduced at trial, was not prosecutorial misconduct.
OPINION
Per Curiam:
This is an appeal by Sandy Marie Shaw who was convicted of one count of first degree
murder with the use of a deadly weapon. Shaw received two consecutive life sentences
without the possibility of parole.
During closing argument at trial, the state discussed the felony-murder rule and its
potential application to the death of James Cotton Kelly. In addition, the jury was read
instruction number eleven which stated in part: Murder of the First Degree is Murder which
is (a) perpetrated by means of any kind of wilful, deliberate and premeditated killing or {b)
committed in the perpetration or attempted perpetration of robbery."
104 Nev. 100, 102 (1988) Shaw v. State
deliberate and premeditated killing or (b) committed in the perpetration or attempted
perpetration of robbery. Shaw contends that it was possible that she was convicted of first
degree felony-murder without being charged with the underlying felony. Since she was not
charged with the robbery, nor certified as an adult to stand trial for that felony, Shaw insists
that she was denied a fair trial, and thus her conviction must be overturned. We disagree.
Juvenile Certification
At trial, the state primarily proceeded under the theory that Shaw was guilty of
premeditated first degree murder. A review of the record clearly indicates the presence of
substantial evidence in support of a first degree murder conviction under a premeditation
theory. Nevertheless, we will address Shaw's suggestion of error concerning application of
the felony-murder rule.
[Headnote 1]
Shaw was charged and convicted of the crime of murder. First degree murder is defined, in
part, as a killing [c]ommitted in the perpetration or attempted perpetration of . . . [a]
robbery. NRS 200.030(1). In proving first degree murder using the felony-murder rule, the
state need not charge the underlying felony. We have in the past stressed that:
The law is well settled in this State that a felony and a homicide committed together
constitute the crime of murder and may be charged as such and in the same manner as the
other murders are charged, and it is not necessary to allege that it was committed in
perpetrating another felony.
Rogers v. State, 83 Nev. 376, 378, 432 P.2d 331, 332 (1967). It is clear, therefore, that the
prosecution's use of the felony-murder rule at Shaw's murder trial does not mandate an
additional charge of the underlying felony.
[Headnote 2]
At both the time the murder was committed and at the time of trial, Shaw had not attained
sixteen years of of age. Under the laws governing juveniles, Nevada Revised Statute Chapter
62, a child under the age of sixteen may not be certified by the juvenile court to stand trial as
an adult. NRS 62.080. The juvenile court, however, may retain for trial only those minors
who have committed an act which falls within the jurisdiction of the juvenile court.
According to the juvenile laws, the juvenile courts hold exclusive original jurisdiction over
proceedings concerning a child who has committed a delinquent act. NRS 62.040(1). The
term delinquent act is specifically defined to exclude the crimes of murder and attempted
murder. NRS 62.040(1). As a result, it was not necessary to certify Shaw as an adult
before she could stand trial for the murder of James Cotton Kelly.
104 Nev. 100, 103 (1988) Shaw v. State
result, it was not necessary to certify Shaw as an adult before she could stand trial for the
murder of James Cotton Kelly. Furthermore, since the crime of robbery was not, and need not
have been charged, it was not necessary to certify Shaw as an adult in conjunction with such
crime. Consequently, the district court's failure to certify Shaw as an adult in connection with
the robbery of James Cotton Kelly did not deny Shaw a fair trial.
Bargained-for Testimony
[Headnotes 3, 4]
Shaw maintains that the testimony of Thomas Varela was tainted by an alleged deal with
the prosecution. Because it is elemental that prosecutors must disclose agreements made with
material witnesses, People v. Phillips, 711 P.2d 423 (Cal. 1985), and since no agreement was
revealed at trial, Shaw insists that Thomas Varela's testimony was tainted to a degree
sufficient to justify reversal of her conviction. Once again we must disagree.
On direct examination, Thomas Varela explained that he had inquired into whether a deal
could be reached for information regarding Shaw's case. Thomas Varela further testified that
the state indicated no plea bargain deal would be offered. Moreover, he denied that he had
struck any such deal with the prosecution.
The only support for Shaw's attack is the inference of a possible deal derived from the fact
that Thomas Varela's probation was lifted and his bail dropped prior to trial. In light of the
trial testimony, this inference, standing alone, is hardly sufficient to establish the alleged
prosecutorial impropriety. In addition, Thomas Varela's testimony was substantially
duplicated by the testimony of his brother, Jerry Varela. Since there is no challenge to Jerry
Varela's testimony, and since such testimony is similar to that offered by Thomas Varela, any
error arising from the admission of Thomas Varela's testimony would be harmless.
Double Hearsay
[Headnote 5]
Shaw challenges the admissibility of Christopher Couzens's testimony. Couzens testified
to the substance of a conversation he overheard between two participants in the murder, Troy
Kell and Billy Merritt. According to Couzens, with both Kell and him in the room, Merritt
telephoned Shaw. During the phone call, Merritt relayed Shaw's statements to Kell. Shaw
contends that Couzens's entire testimony was inadmissible hearsay which extremely
prejudiced her case, and thereby warrants reversal of her conviction.
Couzens's testimony, although partly hearsay and partly double hearsay, was properly
admitted. Hearsay within hearsay is admissible where each hearsay statement falls within
the confines of a hearsay exception.
104 Nev. 100, 104 (1988) Shaw v. State
admissible where each hearsay statement falls within the confines of a hearsay exception.
NRS 51.067. Couzens's testimony concerning Shaw's statements over the telephone were
properly admitted since they were statements of a party offered against that party. NRS
51.035(3)(a). Couzens's testimony pertaining to Merritt's recitation of Shaw's over-the-phone
statements were likewise properly admitted by the district court pursuant to the co-conspirator
exception to the hearsay ban. NRS 51.035(3)(e). Thus, the district court acted appropriately in
admitting Couzens's testimony.
Inculpatory Statements
[Headnote 6]
Shaw argues that because she was a minor at the time of her arrest she was entitled to the
protections set forth in Nevada's juvenile statutesNevada Revised Statutes Chapter 62.
Since one of those protections, the required immediate notification of one of Shaw's parents
at the time she was taken into custody, was not provided, Shaw submits that her statements of
October 4, 1986, October 5, 1986, and October 8, 1986, should have been supressed at trial.
As previously stated, individuals charged with murder are specifically excepted from the
jurisdiction of the juvenile courts and therefore do not come within the purview of the
attendant juvenile laws. NRS 62.040. Shaw was not entitled to any of the protections set forth
in NRS Chapter 62, and accordingly, we find no error by the district court.
Prior Admissions
[Headnote 7]
Shaw contends that the prosecution improperly questioned Shaw's credibility at trial in
light of the state's use of Shaw's admissions. It is Shaw's position that the district court erred
by permitting the prosecution to offer testimony of various witnesses recounting statements
made to them by Shaw while permitting the state to attack the credibility of Shaw's testimony
concerning those same events.
Although hearsay, the testimony of those witnesses who recounted Shaw's out-of-court
statements were properly admitted into evidence pursuant to NRS 51.035(3)(a). In addition,
since such admissions were inconsistent with Shaw's position at trial, they were relevant and
admissible. Turner v. State, 98 Nev. 103, 641 P.2d 1062 (1982). In light of the inconsistency
between the properly admissible extra-judicial statements made by Shaw to various witnesses
and her in-court testimony, it was proper for the prosecution to attack Shaw's credibility.
104 Nev. 100, 105 (1988) Shaw v. State
the prosecution to attack Shaw's credibility. As such, we find no error.
Prosecutorial Misconduct
[Headnotes 8, 9]
Shaw suggests that the prosecution's lopsided portrayal of the case to the media, without
mention of any mitigating facts adduced at trial, amounts to prosecutorial misconduct. Suffice
it to say, that for prosecutorial misconduct to occur, the jury, not the public in general, must
be prejudiced by the state's conduct. See Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987);
Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986); Collier v. State, 101 Nev. 473, 705 P.2d
1126 (1985); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984); Dearman v. State, 93
Nev. 364, 566 P.2d 407 (1977). The challenged statements do not represent prosecutorial
misconduct.
Conclusion
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that Shaw cannot demonstrate error in this appeal. Accordingly, we affirm the judgment of
the district court.
____________
104 Nev. 105, 105 (1988) Flanagan v. State
DALE EDWARD FLANAGAN, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 17130
May 18, 1988 754 P.2d 836
Appeal from judgment of conviction and imposition of sentence of death. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted of murdering his grandparents following jury trial in district
court and he appealed. The Supreme Court, Mowbray, J., held that cumulative effect of
prosecutor's misconduct during penalty phase was of such magnitude as to render sentencing
hearing fundamentally unfair, requiring a new penalty hearing.
Affirmed in part; reversed in part.
Gunderson, C. J., and Steffen, J., dissented.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy, Terrence M. Jackson,
Deputy, Clark County, for Appellant.
104 Nev. 105, 106 (1988) Flanagan v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy, Ronald C. Bloxham, Deputy, Clark County, for Respondent.
1. Criminal Law.
When guilty verdict is free from doubt, even aggravated prosecutorial remarks will not justify reversal.
2. Criminal Law.
Prosecutor's conduct during guilt phase of murder trial did not render determination of guilt
fundamentally unfair in light of over-whelming evidence of defendant's involvement in the planning and
execution of the murders.
3. Criminal Law.
Allegations of prosecutorial misconduct at penalty phase of murder trial would be considered as if there
had been compliance with contemporaneous objection rule, where life was at stake and procedure whereby
defense counsel had acted in accordance with perceived wish of the court, that counsel not interrupt
continuity of proceedings but wait until recess, was apparently acquiesced in by the prosecution.
4. Criminal Law.
Prosecutor's conduct, while arguing for death penalty for murder, in repeatedly referring to defendant's
improbable rehabilitation and likelihood of future killings, as well as reference to possibility of escape, was
improper.
5. Criminal Law.
It was improper for prosecutor in murder case to inform jury that he did not take his responsibilities
lightly, that he tried to discriminate between penalties, and that death penalty was the only penalty that he
would even suggest jury consider in the instant case.
6. Criminal Law.
It was improper for prosecutor in murder prosecution to criticize jury in a totally different case for giving
another young defendant life with the possibility of parole and urging jury in the present case not to make
the same mistake.
7. Criminal Law.
Prosecutor's reference to fact that defendants, unlike another witness, did not give testimony under oath,
and statement that defendants could or could not take the stand whenever they wanted were violation of
defendant's right to remain silent, and constituted reversible error with respect to penalty phase of murder
trial. U.S.C.A.Const. Amend. 5.
8. Criminal Law.
It was improper for prosecutor to state, in arguing for death penalty in murder case, that If we don't
punish, then society is going to laugh at us.
9. Criminal Law.
Cumulative effect of prosecutor's extensive misconduct during penalty phase of murder trial was of such
magnitude as to render sentencing hearing fundamentally unfair, requiring a new penalty hearing.
OPINION
By the Court, Mowbray, J.:
A jury convicted Dale Edward Flanagan of murdering his grandparents and sentenced
him to death.
104 Nev. 105, 107 (1988) Flanagan v. State
grandparents and sentenced him to death. For the reasons set forth below, we affirm the
conviction but set aside the death sentence and remand for a new penalty hearing.
On the afternoon of November 6, 1984, Carl and Colleen Gordon were found dead in their
las Vegas residence. Mr. Gordon, a fifty-eight year old air traffic controller, had been shot
seven times in the back and chest. Mrs. Gordon, a fifty-seven year old housewife, had been
shot three times in the head. The record contains overwhelming evidence that nineteen year
old Flanagan and his co-defendants planned to kill the Gordons in an effort to obtain
insurance proceeds and an inheritance. With the express purpose of killing the Gordons,
Flanagan and the others broke into the Gordon residence and accomplished their deadly
objective.
[Headnotes 1, 2]
This appeal, once again, focuses our attention on the troubling and recurring issue of
prosecutorial misconduct. Flanagan contends that prosecutorial misconduct at the guilt and
sentencing phases of his trial denied him a fundamentally fair trial. Having carefully reviewed
Flanagan's claims of misconduct at the guilt phase, we conclude that the prosecutor's actions
were not so prejudicial as to mandate reversal. When a guilty verdict is free from doubt, even
aggravated prosecutorial remarks will not justify reversal. Yates v. State, 103 Nev. 200, 734
P.2d 1252 (1987); Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977). Here, there was
overwhelming evidence of Flanagan's involvement in the planning and execution of the
murders. Given the strength of the State's case, we hold that the prosecutor's conduct did not
render the determination of Flanagan's guilt fundamentally unfair.
We cannot, however, reach the same conclusion when considering the allegations of
prosecutorial misconduct at the sentencing phase of Flanagan's trial. At the sentencing phase,
it is most important that the jury not be influenced by passion, prejudice, or any other
arbitrary factor. Hance v. Zant, 696 F.2d 940, 951 (11th Cir. 1983). With a man's life at
stake, a prosecutor should not play on the passions of the jury. Id. Even in what was
apparently intended to be a review of the facts, the prosecutor could not resist the temptation
to weave in an inappropriate appeal to passion when he stated:
Well, I remember grandma. I remember my kindly Swedish grandmother. I remember
the cookies and milk and I remember crawling up into her lap, a warm ample lap.
But I don't ever remember crawling into that lap and wrestling her down and holding
my hand over her mouth and shooting her three times in the head with a .22 pistol. I don't
remember that about my grandmother. That is what [the defendant] remembers about his
grandmother.
104 Nev. 105, 108 (1988) Flanagan v. State
Based on our evaluation of the seventeen allegations of prosecutorial misconduct, we have
identified five categories of misconduct which warrant our consideration and unequivocal
condemnation.
[Headnote 3]
While objections by defense counsel were hardly an exemplar of a properly made
contemporaneous objection, the delay was caused by what was perceived to be the court's
wish that counsel not interrupt the continuity of proceedings but rather wait until a recess.
This procedure apparently was acquiesced in by the prosecution, which stated, We have all
pretty much stayed away from objecting; I will go along with that.
Moreover, the State did not argue this as an issue in its brief. Accordingly, under these
circumstances, where a life is at stake, we will consider the allegations of misconduct as if
there had been compliance with the contemporaneous objection rule.
REFERENCE TO IMPROBABLE REHABILITATION
AND FUTURE KILLINGS
[Headnote 4]
We find particularly objectionable, the prosecutor's repeated references to Flanagan's
improbable rehabilitation and future killings. In direct contravention of our ruling in Collier
v. State, 101 Nev. 473, 705 P.2d 1126 (1985), in which we stated that such comments were
highly inappropriate, the prosecutor in the instant case made the following egregious remarks:
Now, there are three reasons for the death penalty. One is to keep a particular defendant
from ever killing again. Now, if they are given parole, they can go out into society and
kill again. If they escape, they can go into society and kill again. If they are kept in prison
forever, they can kill again, prison guards, other inmates. . . .
And I don't like the burglary and robbery and sexual assault inmates that I and others
have sent to the Nevada State Prison, but I don't suggest they should ever have to die at
the hands of a Dale Flanagan or a Randolph Moore.
And I suggest to you these two, as well as anyone else who have proved their ability,
their capability, their willingness to murder, is capable of doing it again. And so that is
one reason that we can give to give the death penalty so that an individual will never kill
again.
Moreover, we note that the prosecutor's above reference to the possibility of escape is
improper. The prospect of escape is not part of the calculus that the jury should consider in
determining a defendant's sentence. Id. at 479.
104 Nev. 105, 109 (1988) Flanagan v. State
As in Collier, the prosecutor also made a number of comments which we deem to be
deliberate exhortations to convince the jury that the only rational solution was to execute
Flanagan before he could kill again. Statements like if I take that chance and give them life, I
hope I am right because if you are wrong, there are more Carl and Colleen Gordons out there
waiting to be killed and tell them . . . you as a jury have decided that they are never going to
have the opportunity to kill again impermissibly inflamed the jury's emotions. Such
statements placed undue pressure on the jury to conclude that Flanagan would undoubtedly
kill again unless he himself were put to death.
EXPRESSION OF PERSONAL BELIEFS
[Headnote 5]
This court has consistently held that it is improper for a prosecutor to inject his opinion or
personal beliefs into his argument. Aesoph v. State, 102 Nev. 316, 322-23, 721 P.2d 379, 383
(1986); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). In Collier, 101 Nev. at 480,
705 P.2d at 1130, we stated:
Such an injection of personal beliefs into the argument detracts from the unprejudiced,
impartial, and nonpartisan role that a prosecuting attorney assumes in the courtroom.
(Citations omitted.) By stepping out of the prosecutor's role, which is to seek justice
(citations omitted), and by invoking the authority of his or her own supposedly greater
experience and knowledge, a prosecutor invites undue jury reliance on the conclusions
personally endorsed by the prosecuting attorney.
Accordingly, we find it was impermissible for the prosecutor in the case at bar, to inform the
jury that he did not take his responsibilities lightly, that he tried to discriminate between
penalties, and that the death penalty was the only penalty that he would even suggest that the
jury consider.
The prosecutor tendered his own credentials by telling the jury that he had been doing
these kinds of cases for fifteen years. In urging the death penalty, he said the defendants
may con this jury but [they] haven't conned this prosecutor. He further suggested that a
death penalty in this case would avoid the error committed when a jury just one month earlier
gave only a life sentence to Scotty Sloane for the horrible crime of killing Nancy Menke.
Remarks such as these are prime examples of a prosecutor's invoking the authority of his
office. The effect of these arguments is to assure the jurors that someone with greater
experience has already made the decision that the law imposes on them. Tucker v. Zant, 724
F.2d SS2, SS9 {11th Cir.
104 Nev. 105, 110 (1988) Flanagan v. State
v. Zant, 724 F.2d 882, 889 (11th Cir. 1984). Moreover, there is no question that the
prosecutor stepped out of his role as a representative of the State when he informed the jury
that if he had to make the decision, giving Flanagan the death penalty would be an easy
choice. We simply will not condone such an expression of personal belief in the context of a
penalty hearing.
REFERENCES TO ANOTHER CONVICTED MURDERER
[Headnote 6]
During the trial, one of Flanagan's co-defendants called sixteen year old convicted
murderer Scott Sloane as a defense witness.
1
In arguing for the death penalty for Flanagan,
the prosecutor first compared young Sloane to the fuzzy-cheeked, rose complected
defendants in the case at bar and then went on to criticize the jury which had given Sloane life
with the possibility of parole.
2
Next, the prosecutor informed the jury that it, like Sloane's
jury, might have a tussle with its conscience because the defendants were so young. Later,
the prosecutor referred to an alleged death threat made by Sloane and stated that the jury need
only look to Sloane for the suggestion that Flanagan could kill again if he were not given the
death penalty.
In Collier, 101 Nev. at 478, 705 P.2d at 1128, we held that a prosecutor's references to a
notorious Nevada criminal were improper because they discussed matters not in evidence and
because there was not factual basis to suggest a relationship between the defendant and the
notorious criminal. Here, Scott Sloane had absolutely no connection with the defendants.
Sloane and the defendants were similar in that they were all very young men who committed
heinous crimes.
____________________

1
Sloane's conviction stemmed from the kidnap, rape, and murder of a woman in Las Vegas. Sloane received
a life sentence with the possibility of parole.
The substance of Sloane's testimony was that he had been in detention with co-defendant Luckett for five
months and that Luckett had discussed various details of the crime with him. Prior to this period of incarceration,
Sloane had not known any of the defendants in this case.

2
The comment in its entirety reads:
You never saw in that trial the Scotty Sloane we saw in this stand. He even stood up here in front of
the jury and he pawed at the ground and made the same kind of noises that these fellows have made. And
it worked. That jury gave him life with the possibility of parole for the killing of Nancy Menke.
And until today, I have not criticized that jury and it is not my habit ever to do so. And irrespective of
your verdict, I would never criticize a jury.
But looking at it from the other side of the coin, I think we can guess that the jury didn't have all the
information before it it needed. It was wrong about Scott Sloane.
104 Nev. 105, 111 (1988) Flanagan v. State
men who committed heinous crimes. These similarities, however, do not constitute an open
invitation to the prosecutor to criticize the jury in Sloane's case for giving him life with the
possibility of parole and then urging Flanagan's jury not to make the same mistake. A jury's
decision in a totally different case has nothing whatsoever to do with whether Flanagan
should be sentenced to death. Similarly, a death threat made by Sloane is totally irrelevant
and no indication that Flanagan would ever kill again. Such remarks are patently prejudicial
and serve to divert the focus of the juror's attention.
REFERENCES TO FLANAGAN'S FAILURE TO TESTIFY
[Headnote 7]
The established test for determining whether prosecutorial comment constitutes a
prohibited direct reference to a defendant's failure to testify is whether the language used was
manifestly intended or was of such character that the jury would naturally and necessarily
take it to be a comment on the failure of the accused to respond. Deutscher v. State, 95 Nev.
669, 682, 601 P.2d 407, 416 (1979). Here, the prosecutor first made reference to Scott
Sloane's testimony under oath and then argued that these fellows [the defendants] for the
most part, by the way, didn't even do that. Our close examination of this language indicates
that this remark is a direct comment on Flanagan's failure to testify. Next, the prosecutor
stated that [t]hey [the defendants] could or could not take the stand, whatever they wanted.
While we note that this comment is not so direct that the jury would necessarily take it to be a
comment on Flanagan's failure to respond, we find that, when taken in context, this comment
as well, is an impermissible reference to Flanagan's silence. We conclude that the prosecutor's
remarks were a violation of Flanagan's fifth amendment right to remain silent and constitute
reversible error.
REFERENCES REGARDING COMMUNITY STANDARDS
[Headnote 8]
We finally wish to express our strong disapproval of the prosecutor's statement If we
don't punish, then society is going to laugh at us.
3
In Collier, 101 Nev. at 479, 705 P.2d at
1129, this court held that a prosecutor could not blatantly attempt to inflame the jurors by
urging that if they wished to be deemed "moral" and "caring" then they must approach
their duties in anger and give the community what it needs.
____________________

3
The entire remark is as follows:
There is a third reason. Simply to punish. . . . If we don't punish, then society is going to laugh at us. They
are going to say Well, it's just another case of we read all about the stuff about society complaining
about the ills of the world and crimes taking over and they refuse to do anything about it. Well, as has
been said before in this courtroom today, now is your chance.
104 Nev. 105, 112 (1988) Flanagan v. State
court held that a prosecutor could not blatantly attempt to inflame the jurors by urging that if
they wished to be deemed moral and caring then they must approach their duties in anger
and give the community what it needs. We observe that the prosecutor's remark in the instant
case serves no other purpose than to raise the specter of public ridicule and arouse prejudice
against Flanagan.
[Headnote 9]
We are compelled to conclude that the cumulative effect of the prosecutor's extensive
misconduct was of such magnitude as to render Flanagan's sentencing hearing fundamentally
unfair. Given the uncontroverted evidence of guilt, there is simply no justification for such
outrageous behavior. See State v. Cyty, 50 Nev. 256, 256 P. 793 (1927). This case is
remanded for a new penalty hearing.
We have examined Flanagan's other assignments of error and find them to be without
merit.
Young and Springer, JJ., concur.
Gunderson, C. J., and Steffen, J., concurring and dissenting:
We agree that any improprieties which may have occurred during the guilt phase of the
trial were not prejudicial. However, we respectfully dissent from the majority opinion insofar
as it requires a new penalty hearing.
The United States Supreme Court, in United States v. Young, 470 U.S. 1 (1984), declared
that a criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial. Id. at 11. Although prosecutorial misconduct did occur in this case, the remarks did not
deprive Flanagan of a fair trial. Anything the prosecutor said about Flanagan paled in
comparison to the portrait painted by Flanagan himself as he terrorized and murdered his
grandparents. See Wainwright v. Darden, 106 S.Ct. 2464 (1986); Darden v. State, 329 So.2d
287 (Fla. 1976). We are persuaded that the prosecutor said nothing that influenced the jury to
deal more harshly with Flanagan than it would have absent the prosecutor's comments.
Moreover, this court said in Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975):
In State v. Hunter, 48 Nev. 358, 367, 232 P. 778, 781 (1925), this court held that to
entitle a defendant to have improper remarks of counsel considered on appeal,
objections must be made to them at the time, and the court must be required to rule
upon the objection, to admonish counsel, and instruct the jury."
104 Nev. 105, 113 (1988) Flanagan v. State
improper remarks of counsel considered on appeal, objections must be made to them at
the time, and the court must be required to rule upon the objection, to admonish counsel,
and instruct the jury. This requirement was reiterated in State v. Fitch, 65 Nev. 668, 200
P.2d 991 (1948), and more recently in Mears v. State, 83 Nev. 3, 442 P.2d 230 (1967).
No such request was made in the instant case.
Id. at 814, 544 P.2d at 427 (emphasis added).
The rule just mentioned has since been relied upon in cases even more recent than Moser.
See, e.g., Kelso v. State, 95 Nev. 37, 44, 588 P.2d 1035, 1040 (1979); Mercado v. State, 100
Nev. 535, 538, 688 P.2d 305, 307 (1984). Therefore, as stated in Point v. State, 102 Nev. 143,
717 P.2d 38 (1986), we need not consider the issues of misconduct which defendant's counsel
belatedly seeks to raise, since there was no objection at trial that would have alerted the
district court to the necessity of avoiding the possibility of error, 102 Nev. at 147, 717 P.2d
at 42. This rule may not be nullified by any agreement, express or implied, between counsel
even when promoted or endorsed by the trial judge.
____________
104 Nev. 113, 113 (1988) Moore v. State
RANDOLPH MOORE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17900
May 18, 1988 754 P.2d 841
Appeal from judgment of conviction on two counts of murder with use of a deadly
weapon, one count of robbery with use of a deadly weapon, one count of burglary, and three
counts of conspiracy, and from imposition of sentence of death. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted on two counts of murder with use of a deadly weapon, one count
of burglary, and three counts of conspiracy, and from imposition of sentence of death
following a jury trial in the district court. The Supreme Court held that cumulative effect of
prosecutor's misconduct during penalty phase was of such magnitude as to render sentencing
hearing fundamentally unfair, requiring reversal of the sentence and a new penalty hearing.
Affirmed in part; reversed in part.
Gunderson, C.J. and Steffen, J., dissented.
Earl T. Ayers, Las Vegas, for Appellant.
104 Nev. 113, 114 (1988) Moore v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Daniel M. Seaton, Deputy District Attorney, Clark
County, for Respondent.
OPINION
By the Court, Springer, J.:
This is an appeal from a judgment of conviction and the subsequent sentence of death.
Once again we are faced with the problematic issue of prosecutorial misconduct. In support of
his claim of a fundamentally unfair trial, Randolph Moore submits more than twenty alleged
incidents of prosecutorial misconduct occurring at his penalty hearing.
Randolph Moore, Dale Flanagan and two others were jointly tried and subsequently
convicted of the murders of Carl and Colleen Gordon. The underlying facts of this case have
been adequately set forth in our opinion in the case of Flanagan v. State, 104 Nev. 105, 754
P.2d 836 (1988). In addition, a substantial portion of the incidents of prosecutorial
misconduct currently propounded by Randolph Moore have been directly addressed in the
Flanagan opinion. Having meticulously reviewed Moore's claims of misconduct and for the
reasons set forth in Flanagan, we conclude that Moore was indeed denied a fair penalty
hearing.
We have carefully examined Moore's remaining assignments of error concerning the
judgment of conviction and find them to be without merit. However, the cumulative effect of
the prosecutor's extensive misconduct at the penalty hearing is of such magnitude as to render
Moore's penalty hearing fundamentally unfair. Accordingly, we reverse Moore's sentence and
remand this case for a new penalty hearing. In all other respects, we affirm the judgment of
conviction.
Young and Mowbray, JJ., concur.
Gunderson, C.J., and Steffen, J., concurring and dissenting:
We agree that any improprieties which may have occurred during the guilt phase of the
trial were not prejudicial. However, for the reasons set forth in the dissent to Flanagan v.
State, 104 Nev. 105, 754 P.2d 836 (1988), we respectfully dissent from the majority opinion
insofar as it requires a new penalty hearing.
____________
104 Nev. 115, 115 (1988) State Bar of Nevada v. Claiborne
STATE BAR OF NEVADA, Petitioner, v. HARRY
EUGENE CLAIBORNE, Respondent.
No. 17294
May 18, 1988 756 P.2d 464
Original proceedings relating to attorney discipline.
Attorney disciplinary proceeding was brought. The Supreme Court, Steffen, J., held that
no additional discipline would be imposed upon impeached 70-year-old federal judge who
had been convicted of filing false federal tax returns, where serious questions existed
regarding propriety of investigation and trial of judge, and there was evidence of judge's good
character and exemplary professional standing.
Proceedings dismissed.
John Howe, Nevada State Bar Counsel, Las Vegas, for Petitioner.
Oscar B. Goodman, David Goldwater, Las Vegas; John S. Drendel, Reno, for Respondent.
1. Attorney and Client.
In interest of justice, Supreme Court suspended court rule requiring it to order suspension of attorney
upon receipt of certificate of his conviction where attorney was impeached federal judge, who was arguably
beyond Supreme Court's jurisdiction, and attorney had voluntarily refrained from practice of law after his
release from incarceration, pending resolution of disciplinary proceeding. SCR 111.
2. Attorney and Client.
Issue of convicted federal judge's discipline would not be referred to Disciplinary Board for evidentiary
review where State Bar Board of Governors had declined to review record on ground of inadequate
resources, and Disciplinary Board had even less capacity to undertake task. SCR 111.
3. Records.
Record of bar disciplinary proceeding would be opened to public where there was substantial public
interest in case and there had already been public disclosure of portions of record by unknown persons.
SCR 121.
4. Attorney and Client.
Supreme Court has obligation in disciplinary proceeding to look beyond label given to attorney's
conviction to true nature of facts, in order to determine whether underlying circumstances of conviction
warrant discipline. SCR 111, subd. 3.
5. Attorney and Client.
Supreme Court could consider retribution thus far exacted upon convicted attorney, in mitigation of
extent of discipline to be imposed.
6. Attorney and Client.
No additional discipline would be imposed upon impeached 70-year-old federal judge who had been
convicted of filing false federal tax returns, where serious questions existed regarding
propriety of investigation and trial of judge, and there was evidence of judge's good
character and exemplary professional standing; though judge's negligent inattention
to his tax obligations warranted discipline, he had already suffered more retribution
than combined criminal and disciplinary sanctions previously imposed upon any
individual member of Bar convicted of similar tax offenses.
104 Nev. 115, 116 (1988) State Bar of Nevada v. Claiborne
returns, where serious questions existed regarding propriety of investigation and trial of judge, and there
was evidence of judge's good character and exemplary professional standing; though judge's negligent
inattention to his tax obligations warranted discipline, he had already suffered more retribution than
combined criminal and disciplinary sanctions previously imposed upon any individual member of Bar
convicted of similar tax offenses. SCR 111.
OPINION
By the Court, Steffen, J.:
On November 25, 1987, this court entered a preliminary order in this matter indicating that
from our review of the pertinent legal authorities and the facts reflected in the record before
us, we were not persuaded that further discipline should be imposed upon respondent. See
Docket No. 17294, order filed November 25, 1987. Our order indicated that a full and formal
opinion setting forth in detail the grounds for our decision would be forthcoming.
Accordingly, this opinion constitutes our formal and final resolution of the issues presented in
this disciplinary proceeding.
The unique history and extensive interest permeating this proceeding demand a protracted
and detailed analysis of the complex of factors that culminated in this court's determination
not to impose further discipline on the respondent Harry Eugene Claiborne. The extent to
which the judicial assets of this court have been allocated to the fair and just resolution of this
matter reflect a predominate concern and sensitivity to the preservation of public confidence
in the integrity of the state bar and, by extension, the judicial system of this state. We
especially invite those who are and have been content to judge the integrity and rightness of
our preliminary decision by result alone to travel forthrightly and objectively with us over the
expansive terrain that follows. There can be little understanding or appreciation for the
destination reached by this court without surveying the path it followed.
104 Nev. 115, 117 (1988) State Bar of Nevada v. Claiborne
TABLE OF CONTENTS
page
I. PROCEDURAL HISTORY..................................................................118
II. PRELIMINARY NOTE........................................................................129
III. THE FACTUAL HISTORY OF RESPONDENT'S CONVICTION AND
EVENTUAL REMOVAL FROM OFFICE..........................................129
A. THE TENSION BETWEEN FEDERAL AGENTS AND THE
NEVADA FEDERAL DISTRICT COURT JUDGES.................... 131
B. ALLEGATIONS OF INVESTIGATORY MISCONDUCT..........135
C. THE FEDERAL GOVERNMENTS'S BARGAIN WITH JOSEPH
CONFORTE.................................................................................... 139
D. THE GRAND JURY INDICTMENT............................................153
E. RESPONDENT'S FIRST TRIAL.................................................... 153
F. THE SECOND TRIAL AND SUBSEQUENT APPELLATE AND
CONGRESSIONAL PROCEEDINGS..........................................169
1. CONCERNS AND CONSEQUENCES OF THE GRAND
JURY INDICTMENT.............................................................. 172
2. EVIDENCE OF RESPONDENT'S WILLFUL AND
KNOWING CONDUCT........................................................ 176
a. THE 1979 RETURN............................................................ 177
b. THE 1980 RETURN............................................................ 183
3. THE JUDICIAL AND CONGRESSIONAL PROCEEDINGS
194
IV. RESPONDENT'S PROFESSIONAL BACKGROUND........................ 205
V. DISCUSSION........................................................................................210
VI. CONCLUSION.................................................................................. 230 I.
104 Nev. 115, 118 (1988) State Bar of Nevada v. Claiborne
I. PROCEDURAL HISTORY
Initially, for the benefit of the public and the bar, we will set forth in detail the procedural
history of this matter in order to clarify the circumstances under which this case came before
this court, as well as the process we employed in resolving the legal issues presented.
The Board of Governors of the State Bar of Nevada (the Board) first acted upon this matter
in May of 1986, at their annual meeting in San Diego, California. Following that meeting, on
May 27, 1986, former Bar Counsel transmitted to this court a certified copy of respondent's
judgment of conviction. Additionally, Bar Counsel filed a motion, referring to SCR 111,
requesting that this court temporarily suspend respondent from the practice of law in this
state and refer the matter to the Southern Nevada Disciplinary Board of the State Bar for the
sole purpose of assessing the extent of the discipline to be imposed by reason of respondent's
conviction.
1
On July 9, 1986, respondent's counsel opposed the motion for temporary
suspension, contending, among other things, that the State Bar had no jurisdiction to proceed
against respondent Claiborne under SCR 111 because of respondent's official status at that
time as a member of the federal judiciary.
2

At the time former Bar Counsel filed the aforementioned motion with this court,
respondent officially occupied the office of United States District Judge for the District of
Nevada.
____________________

1
SCR 111 provides in pertinent part:
(1) Upon the filing with the supreme court of a certificate of conviction demonstrating that an attorney
has been convicted of a serious crime, as defined by this rule . . . the court shall enter an order suspending
the attorney . . . pending final disposition of a disciplinary proceeding, which shall be commenced by the
appropriate disciplinary board upon notice of conviction. For good cause, the court may set aside its
order suspending the attorney from the practice of law.

2
Interestingly, the former President of the State Bar and other members of the Board advised this court,
through its current Chief Justice, that at the above-noted San Diego meeting Bar Counsel succeeded in bringing
the instant disciplinary matter before the Board without the customary notice, and that Bar Counsel acted in
excess of the Board's consensus by moving to suspend respondent. Specifically, the Chief Justice was advised
that it was the consensus of the Board that Bar Counsel should merely notify this court of respondent's
conviction without assuming an adversarial stance in the matter.
Bar Counsel, Michael Barr, subsequently resigned his position as counsel for the State Bar and presently
serves as an assistant United States Attorney in Las Vegas. Although the minutes of the Board's meeting in San
Diego in May of 1986 have never been submitted to this court as part of the formal record in these proceedings,
the State Bar has never clarified or contradicted our recital of the Board's actions at that meeting. In particular,
we note that we made reference to these facts in the memorandum and order directed to the Board on January
26, 1987. In light of the fact that the State Bar has never availed itself of the opportunity to submit any
clarifications or corrections pertaining to our understanding of the Board's consensus at its May,
104 Nev. 115, 119 (1988) State Bar of Nevada v. Claiborne
motion with this court, respondent officially occupied the office of United States District
Judge for the District of Nevada. Respondent was not actively engaged in the practice of law
in this state and in fact was precluded from such practice by federal law because he was a
sitting federal judge. See 28 U.S.C. 454 (1982); cf. SCR 98. The policy underlying SCR 111
is to afford protection to the public while disciplinary proceedings are pending against active,
practicing members of the bar who have been convicted of criminal offenses reflecting upon
their fitness to practice law. SCR 111 relates to proceedings against attorneys who are
convicted of serious crimes, and does not by its terms apply to state or federal judicial
officers, whose conduct in office is subject to different regulatory measures. See, e.g., Nev.
Const. art. 6, 21 and art. 7, 3; Nev. Code of Jud. Conduct, Canons 1 through 7; U.S.
Const. art. II, 4; 28 U.S.C. 372 (1982). Based upon an extensive body of legal authority,
this court concluded, therefore, in an order filed on July 22, 1986, that the State Bar lacked
jurisdiction to conduct disciplinary proceedings against respondent pursuant to SCR 111
while he officially retained the position of United States District Judge.
3
Additionally, we
noted that, arguably, this court also lacked jurisdiction to proceed against a sitting federal
judge. We nevertheless considered it prudent to undertake a preliminary investigation that
would facilitate a fair and reasonable resolution of the matter in the event that the
jurisdictional impediment was removed. We accordingly specified in our order that:
Judge Claiborne's conviction justifies this court in deferring a final decision as to our
own jurisdiction and in pursuing further inquiry. Moreover, this court believes that,
although the State Bar of Nevada lacks jurisdiction over Judge
____________________
1986 meeting, we have no reason to doubt the accuracy of the representations made to the Chief Justice in this
regard by the former President of the State Bar and other members of the Board.

3
Specifically, in our order of July 22, 1986, we relied upon the following authorities: In re Watson, 71 Nev.
227, 286 P.2d 254 (1955); Alabama State Bar ex rel. Steiner v. Aderholt, 218 So.2d 149 (Ala. 1969)
Claiborne, [Bar Counsel] (state bar cannot remove or discipline a state court judge where the constitution
provides the exclusive method of removal); State Bar v. Superior Court, 278 P. 432 (Cal. 1929) (judge of court
of record was not, during continuance in office, subject to jurisdiction, control, and processes conferred on state
bar association); Petition of Colorado Bar Association, 325 P.2d 932 (Colo. 1958); In re Meraux, 12 So.2d 798
(La. 1943) (judges are inactive members of the bar and hence are not subject to disciplinary authority of the state
bar association); In re Strahl, 195 N.Y.S. 385 (App. Div. 1922) (court dismissed petition by the bar association
to discipline as an attorney a state court judge reasoning that the right to practice law by one holding such a
judicial office as the respondent is suspended during his incumbency); Chambers v. Central Committee, 224
P.2d 583 (Okla. 1950).
104 Nev. 115, 120 (1988) State Bar of Nevada v. Claiborne
Claiborne, [Bar Counsel] should be permitted to aid our inquiry by presenting any
pertinent evidence he may possess concerning Judge Claiborne's contentions that
proceedings against him in federal court have not been conducted fairly, in accord with
due process, and in a manner entitling them to credit in disciplinary action by this
court. (Emphasis added.)
Thereafter, on August 4, 1986, former Bar Counsel responded to our order and
acknowledged that the State bar possessed no evidence concerning [respondent's]
contentions. In our view, his response indicated, among other things, that he had filed his
petition seeking respondent's temporary suspension without any substantial preliminary legal
or factual research. Consequently, based on our review of the preliminary documents and
materials filed by respondent's counsel, this court determined that respondent's contentions
could not be summarily dismissed. See Docket No. 17294, order filed September 16, 1986;
see also In re Hallinan, 307 P.2d 1 (Cal. 1957); In re Hallinan, 272 P.2d 768 (Cal. 1954)
(court refused to proceed summarily against an attorney solely on the basis of judgment of
conviction for wilfully and knowingly filing false and fraudulent federal income tax returns
without first inquiring into whether facts and circumstances surrounding the commission of
the offense involved moral turpitude or other misconduct warranting disbarment or
suspension). Accordingly, on September 16, 1986, we issued an order directing respondent to
transmit to this court an extensive supplemental record of the federal proceedings against him
which would fully apprise this court of matters essential to our complete understanding of the
pending issues, and from which the federal government's position and the evidence against
respondent could be accurately discerned.
4
On October 21, 19S6, respondent's counsel
complied with our directive and transmitted the requested record.5 Subsequently,
respondent's counsel further supplemented the record before us with a multi-volume set
of the "Report of the Senate Impeachment Trial Committee" containing, inter alia, the
transcripts of all testimony elicited during the United States Senate proceedings
conducted pursuant to the articles of impeachment returned by the House of
Representatives.
____________________

4
Specifically, this court placed upon respondent's counsel the burden of transmitting:
1. The transcripts of both of respondent's trials in federal court;
2. All briefs filed by the United States and respondent in the United States Court of Appeals for the
Ninth Circuit;
3. The United States' opposition to respondent's petition for a rehearing filed in the Ninth Circuit;
4. File-stamped copies of all pretrial and post-trial motions to dismiss, motions for a judgment of
acquittal or new trial, opposition thereto, and orders resolving those motions, pertinent to the second trial;
5. File-stamped copies of all motions for judicial recusal, opposition thereto, and any pleadings or
other documents relevant to the issue of whether the federal district court judge conducted the trials in a
biased or prejudicial manner;
6. Any other relevant documentation tendered or filed in the criminal proceedings addressing the
issue of misconduct of government agents and prosecutorial abuse prior to and during trial; and
7. Transcripts of the hearings conducted on the motions described above.
104 Nev. 115, 121 (1988) State Bar of Nevada v. Claiborne
On October 21, 1986, respondent's counsel complied with our directive and transmitted
the requested record.
5
Subsequently, respondent's counsel further supplemented the record
before us with a multi-volume set of the Report of the Senate Impeachment Trial
Committee containing, inter alia, the transcripts of all testimony elicited during the United
States Senate proceedings conducted pursuant to the articles of impeachment returned by the
House of Representatives. Upon receipt of these materials, this court directed its Central
Legal Staff to review the voluminous record and to prepare a detailed memorandum
summarizing and evaluating its contents.
On January 26, 1987, upon completion of our staff's review, in an effort to insure the
accuracy and completeness of our staff's factual analysis, this court issued an order affording
the Board an opportunity to review, evaluate, and comment upon our staff's initial, extensive
memorandum.
6
We requested the Board to evaluate carefully and objectively our staff's
analysis in the light of the record, so that the truth may be as fully determined as possible, to
the end that we may perform our judgmental function.
7

On February 13, 1987, the Board submitted a response to our request stating in part that
the Board "respectfully decline[d] to review the Claiborne record or comment on the
Central Legal Staff's analysis of it."
____________________

5
The record in this proceeding is divided into four parts. Part I is comprised of the pleadings filed in the
United States District Court for the District of Nevada. Parts II and III consist of the transcript of respondent's
first trial and the transcript of his second trial, respectively. Part IV contains the pleadings filed in the United
States Court of Appeals for the Ninth Circuit and in the United States Supreme Court. References to the record
are hereinafter referred to as Rec. Pt. .., Vol. .. at ...

6
We note in this regard that the extensive record in this matter has been readily available for review by the
State Bar throughout a major part of these proceedings. Present Bar Counsel, John Howe, acknowledged at the
hearing of November 24, 1987, that respondent's counsel, Oscar Goodman, had supplied the State Bar, through
service upon Mr. Howe's predecessor, with a copy of the complete record which Mr. Goodman transmitted to
this court. Further, at the hearing of November 24, 1987, Mr. Howe indicated that he had received no
instructions from the Board directing him to review that record, and that he was, quite understandably, not
familiar with the underlying charges and proceedings resulting in respondent's conviction.

7
Specifically, we requested the Board to file a memorandum advising this court:
(1) Whether the facts stated in the memorandum prepared by this Court's Central Legal Staff . . . are
perceived to be inaccurate or incomplete in any material particulars which might reasonably affect this
Court's judgment herein; and
(2) If so, what further facts in the record should be considered, or what further evidence should be
received, relating to the questions of whether, and to what extent, further disciplinary action is warranted
as to Harry E. Claiborne.
See Docket No. 17294, order filed January 26, 1987.
104 Nev. 115, 122 (1988) State Bar of Nevada v. Claiborne
request stating in part that the Board respectfully decline[d] to review the Claiborne record
or comment on the Central Legal Staff's analysis of it. Instead, the Board suggested that it
would support retaining an independent attorney to do so, perhaps an academic from a
recognized law school who would have student assistance available to carry out the enormous
task the evaluation would be. The Board also expressed its belief that disciplinary
proceedings against respondent should be conducted pursuant to SCR 111 because
respondent was at that time no longer a member of the judiciary. In addition, the Board stated
that, in its opinion, the Bar Governors' review of the record or of our staff's memorandum
would not . . . establish facts by which full faith and credit could be denied to [respondent's]
federal judgment of conviction, and that the Board lacked the investigative and
administrative support necessary to conduct a full hearing.
8
Nonetheless, the Board also
expressed its support of those who, at the time of Respondent's impeachment trial, called for
an inquiry into the circumstances of his investigation, indictment, prosecution and
conviction. Thus, the Board's response seemed to express divergent and, from our
perspective, internally inconsistent viewpoints respecting our request for assistance.
In any event, the Board's equivocation finely focused the concerns and alternatives
besetting our court. We could have followed the Board's suggestion and sought assistance
outside the bar and the court in accomplishing the enormous task of further evaluation of
the results of the extensive efforts of our own central legal staff. We elected not to pursue this
alternative because of our confidence in the quality and objectivity of our staff's analysis of
the voluminous record coupled with our dissatisfaction with the portents of delay and
inefficiency inherent in obtaining a review by an academic while concomitantly referring the
matter to a disciplinary board. Moreover, we were less than enthused by the Board's apparent
lack of commitment to a task that could have been accomplished with paid assistance at
comparatively small expense to the Bar's substantial surplus funds.
We found equally unreasonable the Board's request to invoke the machinery and pendent
sanction of SCR 111. Given the exhaustive review of the Claiborne history by this court, and
the disavowal of resources available to the Board to undertake the
____________________

8
We note that the inquiry before this court does not include a question of full faith and credit as suggested
by the Board. See U.S. Const. art. IV, 1. Instead, the question before this court is whether, based on all the
circumstances, professional discipline should be imposed. See Sloan v. State Bar, 102 Nev. 436, 440, 726 P.2d
330, 333 (1986); In re Kristovich, 556 P.2d 771, 773 (Cal. 1976) (court may look at the enormous task of
reviewing the record whole course of attorney's conduct which reflects on his fitness to practice law).
104 Nev. 115, 123 (1988) State Bar of Nevada v. Claiborne
enormous task of reviewing the record and our staff analysis thereof, there was little
expectancy for timely and effective review by busy lawyers sitting as an extension of the
Board in the form of a disciplinary board. Although respondent was disentitled to favored
treatment by the bench and bar of this state, basic fairness would not permit us to ignore the
tortured history of Claiborne's prosecution, conviction, impeachment, and incarceration
combined with the prospect of protracted disciplinary proceedings that could, by virtue of
delay alone, expand the degree of punishment well beyond the bounds of human decency and
objective judicial discretion.
In our approach to SCR 111, as with any other rule of court, we are enjoined to give the
rule a liberal construction to promote and facilitate the administration of justice by the
court. SCR 5. Moreover, it is beyond cavil that the inherent rule-making powers of this court
also include the power to suspend or relax any court rule in order to promote individual
justice. See Ashley v. Superior Court in and for Pierce County, 521 P.2d 711, 715 (Wash.
1974); 21 C.J.S. Courts 178 (1940); 20 Am.Jur.2d Courts 79, 85 (1965). See also State
v. Lemme, 244 A.2d 585, 589 (R.I. 1968); Norton v. Standard Coosa-Thatcher Company, 315
S.W.2d 245, 249 (Tenn. 1958) (on rehearing). Based upon the foregoing principles, we
determined that efficiency and justice would be served by suspending the operation of SCR
111, insofar as it required the court to order the suspension of respondent upon receipt of the
certificate of his conviction, and to refer the matter to a disciplinary board of the state bar.
[Headnote 1]
In respect of our decision not to suspend respondent upon receipt of the certificate of his
conviction, we reiterate that, at that time, such suspension was arguably beyond our
jurisdiction and unnecessary in any event because Claiborne was still a federal judge. At the
point of respondent's impeachment and removal from office, he was incarcerated and
therefore unable to practice law. Finally, as respondent's counsel observed at our hearing of
November 24, 1987, respondent had voluntarily refrained from the practice of law pending
this court's resolution of the question of his fitness to remain a licensed member of the bar.
9
More important, however, was the concern to protect the public from an unfit
practitioner, the underlying purpose for the automatic suspension provision of SCR 111.
____________________

9
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
105-06. We note in this regard that in July of 1986, respondent's counsel asserted that proceedings before a
disciplinary panel of the state bar during the period of respondent's incarceration would deprive respondent of
due process of law. See Respondent's Points and Authorities, Docket No. 17294, filed July 9, 1986, at 22-26. In
particular, his counsel argued that respondent's right to be heard would be significantly
104 Nev. 115, 124 (1988) State Bar of Nevada v. Claiborne
More important, however, was the concern to protect the public from an unfit practitioner,
the underlying purpose for the automatic suspension provision of SCR 111. In this case, the
purpose was satisfied by respondent's status as federal judge, incarcerated former judge and
voluntary nonparticipant in the practice of law, respectively. Of equal persuasion on the issue
of public safety was respondent's lengthy, exemplary record as a trial lawyer prior to his
appointment to the federal bench and his subsequent felony conviction. More will be said on
that subject later in this opinion. Simply stated, because the policy concern behind the
suspension provision of SCR 111 was mooted, the need to suspend under the peculiar facts of
this case did not exist. The danger to the public that SCR 111 attempts to foreclose was not
present in this instance.
10

[Headnote 2]
There were also compelling reasons for this court not to refer the issue of Claiborne's
discipline to the Southern Nevada Disciplinary Board as provided under SCR 111. As
previously noted, this court had commenced reviewing respondent's situation well before his
removal as a federal judge on October 9, 1986. And, pursuant to our order of September 16,
1986, respondent's counsel, on October 21 and 22, 1986, provided this court and the State Bar
with a complete record of the entire federal court proceedings both at the trial and appellate
levels. At no time between the date of October 21, 1986, and our order of January 26, 1987,
requesting evaluative assistance from the Board concerning the accuracy and completeness
of our staff analysis of the record, did the Board ask this court, by formal motion or
otherwise, to refer the Claiborne matter to the bar disciplinary board.
____________________
endangered because, due to his incarceration, respondent would be unable personally to attend such a hearing
and to articulate his own defense.
This court has previously observed:
The Supreme Court has emphasized that due process is flexible and calls for such procedural
protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To
determine appropriate procedure, we must consider: (1) the private interest affected; (2) the risk of
erroneous deprivation by the procedures used; and (3) the government interest to be protected in light of
the fiscal and administrative burdens imposed by additional procedural safeguards. Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
See Burleigh v. State Bar of Nevada, 98 Nev. 140, 145, 643 P.2d 1201, 1204 (1982). Unquestionably,
respondent's right to practice law is a valuable property right and private interest that cannot be deprived without
due process of law. Id. Because respondent was either unable to practice or voluntarily refrained from the private
practice of law prior to our order of November 25, 1987, there existed minimal danger to the public interest.

10
In a somewhat analogous context, this court has previously expressed the policy that it will exercise its
inherent authority over matters concerning the bar to provide relief from a rule where the rule operates arbitrarily
and effects a result unrelated to its essential purpose. See In re Nort, 96 Nev. 85, 96, 605 P.2d 627, 635 (1980);
see also Bennet v. State Bar, 103 Nev. 519, 746 P.2d 143 (1987).
104 Nev. 115, 125 (1988) State Bar of Nevada v. Claiborne
and completeness of our staff analysis of the record, did the Board ask this court, by formal
motion or otherwise, to refer the Claiborne matter to the bar disciplinary board. Our January
26, 1987, order should have allayed any fears that this court intended to favor Claiborne with
unilateral review. On the other hand, it made no sense for the court to employ an academic to
research the extensive Claiborne record and our staff analysis thereof while concomitantly
referring the matter to a disciplinary adjunct of the Board which, in the final analysis, could
do no more than issue a non-binding recommendation to this court concerning the issue of
respondent's discipline. See In re Kenick, 100 Nev. 273, 275-76, 680 P.2d 972, 974 (1984);
Haviland v. Foley et al., 55 Nev. 455, 457, 39 P.2d 198 (1935); In re Scott, 53 Nev. 24, 38,
292 P. 291, 295 (1930). The Board had declined to review the record on grounds of
inadequate resources, and it was apparent that the Southern Nevada Disciplinary Board would
have even less capacity to undertake the task. Thus, we were constrained to accept the Board's
evident determination that its review of the record and the facts underlying respondent's
judgment of conviction was too onerous a task to undertake, notwithstanding the precedents
of this court holding that the circumstances underlying the conviction must be considered in a
disciplinary proceeding. See Sloan v. State Bar, 102 Nev. 436, 440, 726 P.2d 330, 333
(1986); In re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976). Furthermore, as previously
observed, the Board's February 13, 1987, response to our order of January 26 of the same year
revealed either a misapprehension or lack of commitment to the task with which this court
would have to struggle. We were hardly concerned with an exhaustive analysis of the
Claiborne record as a possible predicate to a judicially improper denial of full faith and credit
to the federal judgment of conviction. Our concerns dealt with the entire complex of
circumstances underlying respondent's conviction and its impact, if any, on the nature and
extent of any further discipline imposed on respondent by this court. The Board may have
viewed such an undertaking as unduly onerous and futile, but we considered the effort
necessary to a just disposition of respondent's future as a Nevada lawyer and citizen.
Tragically, the hallmark of Claiborne's prosecution, conviction, appellate review, and
eventual removal from the bench has been an apparent unwillingness to consider all pieces of
the puzzle. However imperfectly, we have forthrightly sought to assimilate and express a
more complete picture of the Claiborne episode. A less thorough review by a disciplinary
board would have, for respondent, merely perpetuated, as prologue, an abbreviated formula
for the final blow by this court; for us it would have constituted an effort meaningless at best
and prejudicial to a full public understanding and acceptance at worst.
104 Nev. 115, 126 (1988) State Bar of Nevada v. Claiborne
full public understanding and acceptance at worst. We acknowledge that our premise assumes
a less thorough review by an ephemeral disciplinary board, but our keen appreciation of the
extensive assets invested in our own review provides reason to the assumption. A similar
investment by a small group of practicing attorneys and one or more laypersons whose
attention to the task could only be intermittent would have required an entirely unacceptable
length of delay. In short, our elected course was in no sense a denigration of the character,
integrity, and wisdom of bar and lay members sitting on a board of discipline. Rather, it was a
recognition of the necessity for a substantial, consistent and prolonged effort that a temporary
board is simply unequipped to handle. If, in the final analysis, due process was to have any
true meaning to the 70-year-old respondent, protracted delay had to be avoided.
A familiar biblical passage insightfully declares that the letter killeth, but the spirit giveth
life.
11
We suspended the letter of SCR 111 in order to give meaning to its spirit in both the
general and specific administration of justice concerning this highly complex and inordinate
matter.
Finally, it is well established that, in discharging its inherent authority to discipline the bar,
this court has the obligation to conduct an independent and de novo review of any record
compiled in a disciplinary proceeding in order to determine whether discipline in any
particular instance is warranted. See SCR 39; SCR 99(1); In re Kenick, 100 Nev. 273, 680
P.2d 972 (1984); In re Miller, 87 Nev. 65, 482 P.2d 326 (1971); In re Wright, 68 Nev. 324,
232 P.2d 398 (1951); In re Scott, 53 Nev. 24, 292 P. 291 (1930); accord McCray v. State Bar
of California, 696 P.2d 83 (Cal. 1985); Matter of Nelson, 549 P.2d 21 (Wash. 1976). Thus,
regardless of whatever preliminary procedures are utilized, the ultimate responsibility for
arriving at the truth in disciplinary matters lies with this court. Because this court had already
reviewed an extensive record in order to ascertain the existence of any facts bearing on the
subject of disciplinary sanctions, and because the State Bar expressly declined to review that
record, disciplinary proceedings before a fact-finding panel of the State Bar in accordance
with SCR 111 would have entailed, in our view, substantial delay and a needless waste of
resources which in any event the Board indicated it did not possess.
12
After this court had
thoroughly familiarized itself with the factual record, we undertook to utilize such
resources as were available to us to define and to proceed with the prompt resolution of
the legal issues confronting us.
____________________

11
2 Corinthians 3:6 (King James).

12
We note that at the hearing of November 24, 1987, Bar Counsel articulated his position that if this court
had enough information to decide whether discipline is warranted, he would not quarrel with a deviation from
the strict dictates of SCR 111. Specifically, we cite the following exchange from the transcript of that hearing:
JUSTICE STEFFEN: Mr. Howe, so it remains your position that this
104 Nev. 115, 127 (1988) State Bar of Nevada v. Claiborne
After this court had thoroughly familiarized itself with the factual record, we undertook to
utilize such resources as were available to us to define and to proceed with the prompt
resolution of the legal issues confronting us. Accordingly, on September 18, 1987, we
directed Bar Counsel, Mr. Howe, as a fiduciary to this court, to provide his objective
assessment of the legal principles which should control our review of the record. See Docket
No. 17294, order filed September 18, 1987.
13
On October 5, 1987, Bar Counsel submitted
his response to our order, indicating that his position respecting the legal principles that
should control our review of the record was substantially congruent with the position
espoused by respondent.
____________________
matter should continue to be protracted and that there should be a discipline commission hearing?
In spite of all that's been known on this matter over these months and years, you feel that there would
be something to be gained by involving the discipline committee procedure to hear the matter further?
MR. HOWE: Well, certainly, I can understand the problem involved in protracting it and extending it,
and certainly that is something that is a disadvantage. And if this court decides that that's its decision, that
it has enough information and can decide the issue, then I wouldn't quarrel with that.
But I do think
CHIEF JUSTICE GUNDERSON: You would not quarrel with that?
MR. HOWE: I would not quarrel with that. But I do think, and the reason why I'm advocating following
the system and referring it to the disciplinary board, is that I think the integrity of our system is important.
And I think it's important that this case be handled as any other case would be handled which, under the
rules, would be to refer it to the disciplinary board and get their findings and recommendations before the
court considers it.
Now, it may be that there's special circumstances that the court, you know, feels because of the
protracted nature that you want to dispense with that.
As I said, I wouldn't quarrel with that, but that's the reason for my recommendation that that's the way
the matter should be handled.
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at 95-96.
See also 95 Reports of American Bar Association 783, 826-34 (1971) (Report of the Special Committee on
Evaluation of Disciplinary Enforcement, addressing the importance of the prompt disposition of disciplinary
proceedings).

13
Our order indicated that Bar Counsel's discussion should focus on, but need not be limited to, the following
questions regarding bar disciplinary proceedings which appeared to bear on respondent's position:
1. Under established Nevada practice, what are the goals of bar disciplinary proceedings?
2. In determining whether further disciplinary sanctions should be imposed by this Court following
conviction for a criminal offense, is it appropriate for this Court under established Nevada practice to
look beyond the fact of the conviction to determine whether the underlying circumstances of such
conviction warrant further discipline?
3. In determining whether the imposition of further discipline is justified, is it appropriate under
Nevada practice for this Court to consider whether the alleged conduct that resulted in the conviction is
isolated or atypical in character, as well as to consider evidence of the attorney's good character,
reputation, contributions to the legal profes-
104 Nev. 115, 128 (1988) State Bar of Nevada v. Claiborne
Bar Counsel submitted his response to our order, indicating that his position respecting the
legal principles that should control our review of the record was substantially congruent with
the position espoused by respondent. We subsequently determined, however, that the parties
should be afforded an opportunity to present to this court any further argument or evidence
defining their positions herein and reflecting upon respondent's fitness to resume the active
practice of law in this state. Accordingly, this court scheduled a hearing on this matter for
November 24, 1987, to be held in Las Vegas, Nevada.
14

[Headnote 3]
On November 20, 1987, Bar Counsel petitioned this court to open the entire record in this
case to the public, including all prior confidential orders of this court, memoranda and
responses thereto. Bar Counsel observed that there was substantial public interest in the case
and that there had been public disclosure of portions of the record by unknown persons in
violation of the established rule that bar disciplinary proceedings are confidential. See SCR
121. Accordingly, as the first order of business at the hearing of November 24, 1987, and
with respondent's concurrence, the Chief Justice directed that this court's pleading file and the
evidentiary records in this matter henceforth be open to public scrutiny.
We are confident that a conscientious review of the now public record of the procedural
history of this unique matter will indicate that this court endeavored to conduct these
proceedings in a manner consistent with the primary and well-established goals and
procedures of bar disciplinary action.
____________________
sion, and professional standing in the legal community over the course of his or her career?
4. In determining whether the imposition of further discipline is justified, is it appropriate for this
Court under Nevada practice to consider the retribution already exacted from the attorney as a result of
his or her conviction?

14
Since 1976, the constitution of this state has vested this court with the authority to conduct proceedings
anywhere within the State of Nevada. See Nev. Const. art. 6, 7. This court has frequently availed itself of the
opportunity to do so in an effort to afford the citizens of Southern Nevada fair and convenient access to the
appellate process. Numerous factors convinced us that the Las Vegas area was the most appropriate venue for
this proceeding. Specifically, these proceedings primarily related to an individual from Southern Nevada, who
was seeking to affirm his right to practice law primarily in that area of the state. Bar Counsel lives and maintains
his office in Las Vegas. The most intense public interest in this matter appeared to be focused in Southern
Nevada, where respondent has been a prominent member of the community since 1945. Respondent's two
counsel live and work in Las Vegas, and we had been informed that a majority of the individuals who might
appear before us also maintain their residences and offices in Southern Nevada. Several of these individuals are
elder members of the bar and one in particular, who has since passed away, was 90 years old at the time of the
hearing. Thus, taking into account the public's right to know, the convenience of the parties, the court, and those
who might appear before us, this court determined that Las Vegas was the most appropriate setting for the
hearing.
104 Nev. 115, 129 (1988) State Bar of Nevada v. Claiborne
record of the procedural history of this unique matter will indicate that this court endeavored
to conduct these proceedings in a manner consistent with the primary and well-established
goals and procedures of bar disciplinary action. Further, in light of the Board's evident
determination that it should take a nonadversarial stance in this matter, we endeavored to
solicit, compile and review a comprehensive factual record from which respondent's position,
as well as any contrary positions, could be accurately ascertained and verified. In so doing,
extensive resources of this court have been expended in an effort to sift through the complex
and unprecedented factual history of this matter to arrive at an equitable result not only
consistent with the truth, but also with the public's right to a bar comprised of attorneys
possessing the highest standards of integrity and professionalism.
II. PRELIMINARY NOTE
In our preliminary decision dated November 25, 1987, we observed that the authorities
cited to us by both the State Bar and respondent establish that:
(1) the paramount objective of bar disciplinary proceedings is not additional
punishment of the attorney, but rather to protect the public from persons unfit to serve
as attorneys and to maintain public confidence in the bar as a whole;
(2) in a disciplinary proceeding, it is the duty of this court to look beyond the label
given to a conviction in order to determine whether the underlying circumstances of the
conviction warrant discipline;
(3) this court must also consider the isolated nature of an attorney's conduct as well
as his prior, exemplary professional standing; and
(4) this court should examine the retribution and punishment already exacted in
determining whether further discipline is warranted. Furthermore, humanitarian
concerns such as age, ill health, or other disability warrant consideration in disciplinary
proceedings.
(Citations omitted.)
We have reviewed the factual record of this matter in light of these fundamental principles.
Thus, as set forth below, our review has necessarily entailed a detailed factual analysis of the
circumstances surrounding Claiborne's prosecution, indictment, conviction, removal from
judicial office, and personal history.
III. THE FACTUAL HISTORY OF RESPONDENT'S
CONVICTION AND EVENTUAL
REMOVAL FROM OFFICE
As fully discussed below, respondent was eventually indicted in 19S3 by a federal grand
jury in Reno, Nevada, following an extensive investigation of his activities by four
separate grand juries.
104 Nev. 115, 130 (1988) State Bar of Nevada v. Claiborne
in 1983 by a federal grand jury in Reno, Nevada, following an extensive investigation of his
activities by four separate grand juries. As Judge Reinhardt of the Ninth Circuit Court of
Appeals observed:
Throughout these proceedings, Judge Claiborne has claimed that his investigation
and prosecution constituted a part of an effort by the Department of Justice's Organized
Crime Strike Force and the F.B.I. to discredit him personally and bring about his
removal from the bench. Prior to his appointment in 1978, Judge Claiborne had been a
prominent trial lawyer and had defended numerous individuals accused of committing
criminal offenses. He contends that after his appointment the government launched a
vendetta against him as a result of his issuance of a number of significant rulings
adverse to the Department of Justice in criminal cases.
See United States v. Claiborne, 781 F.2d 1327, 1328 (9th Cir. 1986) (Reinhardt, J.,
dissenting). To date, however, in both the federal criminal proceedings and in the Senate
impeachment proceedings, respondent's attempts to obtain evidentiary hearings respecting
many of his allegations relating to the investigation, the four grand jury proceedings leading
to his indictment, and prosecution of the criminal charges against him, have been denied.
15

From our perspective, respondent's inability to obtain evidentiary hearings on many of his
allegations in this regard is regrettable. It is not the function of this court in the instant
disciplinary proceeding, however, to sit in review of the federal proceedings resulting in
respondent's conviction. Nonetheless, this court is obligated to look beyond the mere fact of
respondent's conviction in order to ascertain to what extent respondent's conduct, and the
underlying circumstances of his conviction, mandate the imposition of disciplinary sanctions.
See Sloan v. State Bar, 102 Nev. 436, 726 P.2d 330 (1986); In re Gross, 659 P.2d 1137 (Cal.
1983); In re Hallinan, 272 P.2d 768 (Cal. 1954); In re Walker, 364 N.E.2d 76 (Ill. 1977).
Further, we have concluded that many of the facts underlying respondent's allegations are
relevant to our deliberations and are appropriately considered as factors in mitigation of
respondent's conduct.
____________________

15
Rec. Pt. I, Vol. III, Pleadings Nos. 26, 27 at 314-15; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of
hearings on pretrial motions); Rec. Pt. I, Vol. IV, Pleading No. 37 (orders respecting pretrial motions); Report of
the Senate Impeachment Trial Comm.: Hearings Before the Senate Impeachment Trial Comm. on the
Impeachment of Harry E. Claiborne, Judge of the U.S. Dist. Ct. for the Dist. of Nevada, of High Crimes and
Misdemeanors, 99th Cong., 2nd Sess. 812, Pt. 1 at 108, 690, 876, 1181 (1986) (rulings of Chairman Mathias
respecting scope of the impeachment committee's inquiry) [hereinafter cited as Senate Hearings].
104 Nev. 115, 131 (1988) State Bar of Nevada v. Claiborne
mitigation of respondent's conduct. See Sloan v. State Bar, supra; In re Cochrane, supra; see
also Murray v. State Bar of California, 709 P.2d 480 (Cal. 1985); In re Kristovich, 556 P.2d
771 (Cal. 1976); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984).
Significantly, in an analogous context, SCR 114(3) expressly provides that a disciplinary
judgment of another jurisdiction against an attorney licensed to practice in this state does not
automatically require that this court impose the identical discipline. SCR 114(3) provides in
part that:
[T]his court shall impose the identical discipline unless the attorney demonstrates, or
this court finds, that on the face of the record upon which the discipline is predicated it
clearly appears:
(a) That the procedure in the other jurisdiction was so lacking in notice or
opportunity to be heard as the constitute a deprivation of due process; or
(b) That there was such an infirmity of proof establishing the misconduct as to give
rise to the clear conviction that the court could not, consistent with its duty, accept the
decision of the other jurisdiction as fairly reached; or
(c) That the misconduct established warrants substantially different discipline in this
state.
If the court determines that any of the preceding factors exist, it shall enter an
appropriate order.
This provision of our rules is derived from the United States Supreme Court's decision in
Selling v. Radford, 243 U.S. 46, 50-51 (1917). In Selling, the Court articulated the
well-established principle that where an attorney's right to practice in federal court is in issue,
the natural consequences of a judgment in a state bar disciplinary proceeding should not take
effect where an intrinsic consideration of the state court record reveals either a want of notice
or opportunity to be heard, an infirmity of proof establishing a lack of fair private and
professional character, or other grave reasons demonstrating unfairness or injustice. Id.
Accordingly, we have endeavored to set forth below all the facts disclosed by our review of
the record which are relevant to the issue of the nature and extent of discipline applicable to
respondent in this state proceeding.
A. The Tension Between Federal Agents and the
Nevada Federal District Court Judges
When respondent first assumed the federal bench in September of 1978, he initially was
assigned to the Reno area, where he remained until late fall of 1979.
16
During his tenure on
the bench in Reno, and upon his return to Las Vegas, several events transpired which
respondent claims ultimately motivated some federal officials to abuse their authority in
the overzealous pursuit of his criminal prosecution.
____________________

16
Rec. Pt. II, Vol. XIII at 3036-37, 3091.
104 Nev. 115, 132 (1988) State Bar of Nevada v. Claiborne
in Reno, and upon his return to Las Vegas, several events transpired which respondent claims
ultimately motivated some federal officials to abuse their authority in the overzealous pursuit
of his criminal prosecution.
First, in 1980, Joseph Yablonsky arrived in Las Vegas, Nevada, as the
Special-Agent-in-Charge of the Las Vegas office of the FBI.
17
Upon his arrival in Nevada,
Yablonsky reportedly proclaimed that his mission in Las Vegas was to plant the American
flag in the Nevada desert.
18
In testimony presented to the Senate Impeachment Trial
Committee, Hank Greenspun, the publisher and editor of the Las Vegas Sun, stated that he
visited Yablonsky's office the second day that Yablonsky arrived in Las Vegas. Greenspun
recalled that Yablonsky had decorated his office walls with pictures and newspaper articles
recounting Yablonsky's exploits in previous FBI criminal investigations. According to
Greenspun, Yablonsky indicated, at that time, that a large vacant spot on his office wall had
been specifically reserved for Judge Claiborne because he was going to hang Claiborne up
there.
19
Gerald Swanson, the former IRS District Director for Nevada, indicated that
Yablonsky made similar comments when Swanson visited Yablonsky's office in December of
1981.
20

Second, when respondent Claiborne returned to the Las Vegas area in 1979, an atmosphere
of animosity and hostility had arisen between the federal district judges in Nevada and certain
attorneys in the Justice Department's Strike Force which was investigating organized crime in
Nevada.
21
For example, in 1979, then Chief Judge Roger Foley apparently suspected that
Geoffrey Anderson, the chief prosecutor for the federal strike force in Las Vegas, had leaked
information to the news media from sealed affidavits in a case pending in federal court. Judge
Foley's criticism of strike force tactics apparently motivated Anderson to seek Judge Foley's
disqualification from at least one case prosecuted by strike force attorneys.
22
In december of
1979, for example, Federal District Judge Thompson denied an attempt by Anderson to
have Judge Foley disqualified from presiding over a case prosecuted by the strike force
because of actual bias.
____________________

17
Nomination of William H. Webster: Hearings Before the Sen. Select Comm. on Intelligence on the
Nomination of William H. Webster, to be Director of Central Intelligence, 100th Cong., 1st Sess. 276, 93 (1987)
(testimony of W. H. Webster) [hereinafter cited as Webster Nomination].

18
Senate Hearings, supra note 15, Pt. 1 at 930 (testimony of H. E. Claiborne).

19
Senate Hearings, supra note 15, Pt. 1 at 843-44 (testimony of H. M. Greenspun).

20
Rec. Pt. I, Vol. IV, Pleading 33, Ex. B at 10.

21
Id.; Senate Hearings, supra note 15, Pt. 4 at 2307-16 (series of newspaper articles respecting strike force).

22
Senate Hearings, supra note 15, Pt. 1 at 930-31 (testimony of H. E. Claiborne); Respondent's Synopsis of
Acts of Governmental Misconduct, at 1 (filed in this court on August 29, 1986); Rec. Pt. I, Vol. I, Pleading No.
6 at 6.
104 Nev. 115, 133 (1988) State Bar of Nevada v. Claiborne
Federal District Judge Thompson denied an attempt by Anderson to have Judge Foley
disqualified from presiding over a case prosecuted by the strike force because of actual bias.
In denying Anderson's motion, Judge Thompson apparently indicated that Anderson's attitude
toward the sensitive problem of judicial disqualification was unbecoming an attorney for the
government.
23

The tension between the federal district court judges in Nevada and the strike force is
further evidenced by events which transpired in April of 1980. Chief Judge Foley learned that
insulting materials and caricatures were prominently displayed on a bulletin board in the
offices of the strike force.
24
Oscar Goodman claimed the derisive items on the bulletin board
were in full view of, and had an intimidating and prejudicial effect upon, members of the
grand jury, as well as potential grand jury witnesses. These materials consisted of a mock
man-on-the-street interview with numerous individuals including former Clark County
Sheriff John McCarthy, Judge Claiborne, Judge Foley, defense counsel Goodman, and other
individuals, some of whom were reputedly connected with organized crime in Nevada.
25
Sardonic responses to the question, [d]oes organized crime really run the casinos and the
State of Nevada?? appeared beneath the photographs of those depicted. In the space reserved
for Judge Claiborne's photograph appeared the notation no pictures please. Judge Foley, on
the other hand, was depicted as a clown dressed in circus regalia. We do not deem it
appropriate to set forth the statements attributed to those ridiculed in the item in question. We
observe, however, that although the unknown author of this sarcasm ostensibly compiled it in
jest, the fact that it was displayed within the confines of the United States Department of
Justice, and apparently within the purview of members and witnesses of the grand jury,
demonstrated an appalling arrogance, contemptuousness, and lack of decorum. On April 4,
1980, Judge Foley ordered United States Marshals to remove these items.
26
Thereafter, the
problems between the strike force attorneys and the federal district judges became so acute as
to attract the attention of Nevada's congressional delegation, the highest officials in the
Justice Department, and the Clark County Bar Association.27
____________________

23
Senate Hearings, supra note 15, Pt. 1 at 930-31 (testimony of H. E. Claiborne); Respondent's Synopsis of
Acts of Governmental Misconduct, at 1, Docket No. 17294, filed August 29, 1986. See also Rec. Pt. I, Vol. I,
Pleading No. 6 at 35.

24
Senate Hearings, supra note 15, Pt. 1 at 931 (testimony of H. E. Claiborne).

25
Photocopies of this material appear in Rec. Pt. I, Vol. I, Pleading No. 6 at 30-31; Senate Hearings, supra
note 15, Pt. 1 at 931; see also United States v. Claiborne, 781 F.2d 1327, 1328 (9th Cir. 1986) (Reinhardt, J.,
dissenting).

26
See United States v. Claiborne, 781 F.2d at 1328.
104 Nev. 115, 134 (1988) State Bar of Nevada v. Claiborne
congressional delegation, the highest officials in the Justice Department, and the Clark
County Bar Association.
27

Judge Foley subsequently concluded in light of this atmosphere that he should no longer
preside over cases involving the strike force. Further, respondent Claiborne was scheduled to
assume Judge Foley's administrative duties as Chief Judge for the District of Nevada in May
of 1980. Respondent claims that these facts, in addition to the fact that he had ruled adversely
to the government's position and had criticized strike force tactics in several cases which had
come before him, eventually motivated some within the strike force and the FBI to view him
as an obstacle in their path, and to seek his removal from office.
28

The difficulties between the strike force and respondent Claiborne were further
exacerbated in April of 1980, when the news media began reporting that Judge Claiborne was
himself a target of a grand jury investigation spearheaded by the strike force and the FBI.
29
In particular, the media reported that a grand jury was investigating allegations that Judge
Claiborne, prior to his appointment to the bench, had hired a Las Vegas detective, Eddie
LaRue, to conduct illegal electronic surveillance in the course of a defense investigation. The
Public Integrity Section of the United States Department of Justice dispatched an attorney to
Las Vegas to pursue these allegations.
30
Upon learning of the grand jury activity, on April
10, 1980, Judge Claiborne publicly stated that he had been cleared of these same charges
prior to his appointment to office. Additionally, he publicly denounced the strike force, called
for disbandment of the grand jury, and suggested that the grand jury had been tainted by the
improper tactics of some strike force agents and attorneys. Specifically, the Las Vegas Sun, in
an article entitled, Judge Says Strike Force Must Go, quoted Judge Claiborne as follows:
Charging they were a "bunch of crooks," U.S. District Judge Harry E.
____________________

27
Rec. Pt. I, Vol. I, Pleading No. 6 at 23, 34, 44 and 57.

28
United States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986) (Reinhardt, J., dissenting); Senate Hearings,
supra note 15, Pt. 1 at 930 (Claiborne testimony). Respondent's testimony in explanation of some of his rulings
adverse to the government is set forth in the Senate Hearings, supra note 15, Pt. 1 at 966-69. Respondent
explained, for example, that in one such case he directed the acquittal of a coin-wrapper employed by a local
casino, who was indicted by a grand jury, following a strike force investigation, for making false statements on
his income tax return respecting the sale of his automobile. Respondent explained that he felt the only reason the
individual was prosecuted was to justify the expenditure of strike force resources in an otherwise fruitless
investigation of a casino.

29
Rec. Pt. I, Vol. I, Pleading No. 6 at 6, 7.

30
Rec. Pt. I, Vol. I, Pleading No. 6 at 23; Senate hearings, supra note 15, Pt. 1 at 887-88 (testimony of R.
Jesinger).
104 Nev. 115, 135 (1988) State Bar of Nevada v. Claiborne
Charging they were a bunch of crooks, U.S. District Judge Harry E. Claiborne said
Wednesday Las Vegas Strike Force attorneys should be thrown out of Nevada and their
Special Federal Grand Jury disbanded.
I Think they have outlived their usefulness, and they should be removed from this
community, Claiborne said. The grand jury has become tainted and should be
disbanded.
Claiborne said the strike force, which he believes is responsible for 25-30 illegal
wiretaps, also conducts illegal arrests and other such far-reaching illegal activity.
They're a bunch of crooks, and they know I know it, Claiborne angrily said. I'm
not going to let them ride roughshod over this community. I'm going to stop them.
31

We note, however, that in May of 1980, Judge Claiborne voluntarily removed himself from
presiding over any further strike force cases.
32
It was in this setting, then, that federal law
enforcement officials pursued the first of four grand jury investigations of Judge Claiborne
conducted in Las Vegas, Portland, Oregon and Reno, respectively.
B. Allegations of Investigatory Misconduct
In the course of its investigation into the allegations that respondent and LaRue conducted
illegal electronic surveillance, the Las Vegas federal grand jury subpoenaed Charles Lee in
April of 1980.
33
Lee was then employed by the Las Vegas Metropolitan Police Department
as a homicide investigator and polygraph operator. His testimony before the grand jury
concerned a polygraph examination he had administered to respondent in 1977.
____________________

31
Rec. Pt. I, Vol. I, Pleading No. 6 at 6; Senate Hearings, supra note 15, Pt. 1 at 1139-40 (in response to a
question from Senator Heflin, respondent stated that the newspaper's report of his remarks was absolutely
correct and absolutely true). Throughout this opinion, we will from time to time refer to media accounts
respecting the many facets of this case. We consider the extensive media attention devoted to this matter over the
last ten years to be relevant to our consideration and review in several respects. In particular, it is relevant to the
public's perception of Mr. Claiborne, his reputation, his professional standing, and the obloquy and scorn to
which he has been subjected as a result of the proceedings in which he has been involved. We wish to make it
clear, however, that no factual findings or references of this court have been based upon media coverage of these
events. Unless otherwise indicated, any factual recitations appearing in the media accounts cited herein have
been verified by our independent research and review of the record in this matter.

32
Rec. Pt. I, Vol. I, Pleading No. 6 at 37, 39; Senate Hearings, supra note 15, Pt. 1 at 931.

33
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Charles Lee).
104 Nev. 115, 136 (1988) State Bar of Nevada v. Claiborne
polygraph examination he had administered to respondent in 1977. Lee told the grand jury
that, in his expert opinion, respondent had truthfully denied any participation in activities
involving the illegal electronic surveillance into which the grand jury was inquiring.
34

In an affidavit submitted to the federal court, Lee averred that following his appearance
before the grand jury, he was summoned to the office of his superior, Sheriff John McCarthy.
McCarthy informed Lee that he had been visited by two Federal Strike Force agents sent by
[FBI, Special-Agent-In-Charge Joseph] Yablonsky. According to Lee, McCarthy further
stated that as a result of Lee's exculpatory grand jury testimony, Yablonsky considered Lee to
be an uncooperative witness and that Yablonsky was going to come down on [Lee] like a
ton of bricks.
35

Lee's attorney, Michael Stuhff, also has attested to the fact that information subsequently
released to Lee pursuant to requests under the Freedom of Information Act and the Privacy
Act, confirms that Lee was targeted [for investigation] by Yablonsky because of Lee's
refusal to join in or cooperate with Yablonsky's vendetta against Judge Harry E. Claiborne.
36
Lee and his attorney maintain that, as a result of Lee's testimony before the grand jury, and at
the direction of Yablonsky, Lee was demoted and reassigned to a desk job answering
telephones, and was further subjected to an intensive three-year investigation. The
investigation into Lee's activities involved extensive covert and electronic surveillance of Lee
by the FBI. Ultimately, however, the investigation was terminated having disclosed no
wrongdoing upon which criminal charges could be based.
37
It can thus be inferred from the
record that Lee may have suffered extensive harassment and intimidation solely because he
provided exculpatory testimony to the grand jury investigating respondent.
Similarly, the grand jury investigation into the allegations that LaRue conducted illegal
electronic surveillance at respondent's direction failed to result in any indictment against
respondent. LaRue, however, was formally charged with six counts of installing illegal
listening devices.3S These charges were unrelated to the previous allegations involving
respondent.
____________________

34
Id. (affidavit of Charles Lee).

35
Id. (affidavit of Charles Lee).

36
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Michael Stuhff).

37
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavits of Charles Lee and Michael Stuhff); Respondent's
Compendium, Docket No. 17294, filed September 2, 1986 (Pretrial Motion to Dismiss: First TrialGrand Jury
Abuse, at 70).
104 Nev. 115, 137 (1988) State Bar of Nevada v. Claiborne
ing illegal listening devices.
38
These charges were unrelated to the previous allegations
involving respondent. In an affidavit, LaRue has attested that after his indictment, an FBI
agent advised him to give up Judge Claiborne.
39
Further, LaRue has averred:
The agent advised me that if I would do that, all federal charges (the indictment
against me) would be dropped. I told him to give up Judge Claiborne would be false
since I didn't know a single thing illegal or unlawful that Judge Claiborne had ever
done. The message was clear to me I could rid myself of all the expense,
embarrassment, intimidation and sorrow that I had suffered and was about to suffer
simply by lying against Judge Claiborne. This I pointedly refused to do and went to
trial.
I went through the anguish of defending myself against these false charges in Reno
Federal Court. The Government removed the trial to Reno, Nevada, 500 miles from my
home, which added additional financial burden in travel expenses for myself, my
attorney and witnesses. After a week-long trial I was acquitted.
This trial cost me $35,000 in attorney fees alone, to say nothing of the expense of
taking my witnesses all across the State to the trial.
I was wrongfully indicted for the sole purpose of giving the FBI leverage to make a
deal with me. The sole purpose and object of my indictment was to get Judge
Claiborne. He was their target, not me.
40

Thus, the record reveals some factual basis for concluding that despite a lack of significant
evidence of any wrongdoing, LaRue suffered harsh and retributive treatment as a result of his
inability to provide inculpatory evidence against respondent.
Respondent contends that additional questions concerning the propriety of his
pre-indictment investigation are raised by a curious event that took place on March 19, 1981.
On that date, respondent opened his monthly American Express bill and found that an
American Express statement addressed to Nevada State District Judge Thomas O'Donnell
was included along with respondent's.
____________________

38
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue); see also United States v. LaRue, Case
No. CR-LV-80-109 AJA, United States District Court for the District of Nevada.

39
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue). We note that our reliance upon affidavits
submitted to the United States District Court in respondent's criminal proceedings is necessary because in his
criminal and impeachment proceedings, respondent was denied an opportunity to pursue and develop more
extensive evidentiary support respecting his allegations of investigative overreaching. See note 15, supra.

40
Rec. Pt. I, Vol. VIII, Pleading No. 81 (affidavit of Eddie LaRue).
104 Nev. 115, 138 (1988) State Bar of Nevada v. Claiborne
that an American Express statement addressed to Nevada State District Judge Thomas
O'Donnell was included along with respondent's. On April 9, 1981, respondent wrote to the
American Express Company requesting an explanation and observed:
In the envelope containing my last billing was also the bill for Judge Thomas J.
O'Donnell. It would not be surprising that someone's bill was also included with mine
but our curiosity is more than aroused in view of the fact that Judge O'Donnell is my
closest and best friend. For this bill to be included with mine is a very unusual
circumstance.
If I were of a suspicious nature, I might suspect that someone is monitoring our
accounts and replaced both of them in the same envelope by mistake. If this is true, then
both Judge O'Donnell and I desire to pursue it further.
41

Thereafter, the American Express Company replied that it could not explain the mix-up.
42

Prior to his first criminal trial, respondent unsuccessfully moved the federal district court
to dismiss the charges against him on the grounds of selective prosecution and governmental
abuse.
43
Respondent attached an affidavit of Judge O'Donnell to that motion wherein Judge
O'Donnell stated that he had at one time informed Judge Claiborne that Gus Gallo, a
defendant convicted on gambling tax charges, was a promising candidate for probation.
44
Judge O'Donnell further attested that he subsequently obtained material indicating that the
FBI had investigated respondent in connection with the sentence that respondent ultimately
imposed upon Gallo.
45
On the basis of these and other facts, respondent sought an
evidentiary hearing to explore the logical inference that because the strike force and the FBI
were dissatisfied with the sentence imposed upon Gallo, they instituted an investigation in
which mail belonging to respondent and Judge O'Donnell was illegally intercepted resulting
in the mix-up of their March, 19S1 American Express statements.46 Again, however,
respondent was denied an opportunity fully to explore these events in evidentiary
hearings before the federal district court or before the United States Senate.47
Nonetheless, for the purposes of these proceedings, and in our view, these factual
allegations are sufficiently supported to raise serious questions about the propriety of
tactics employed in the pursuit of the indictment and prosecution of respondent.
____________________

41
Rec. Pt. I, Vol. II, Pleading No. 8 (Exhibit B).

42
Id.

43
Rec. Pt. I, Vol. II, Pleading No. 8.

44
Rec. Pt. I, Vol. II, Pleading No. 8 (affidavit of Judge Thomas O'Donnell).

45
Apparently, the presentence report on Gallo recommended an eight-month split sentence of four months in
jail and four months on probation. Respondent apparently concluded, however, that a fine of $25,000 and two
years on probation would have a greater impact upon Gallo than a short term in county jail and would hit Mr.
Gallo where it would hurtin the pocketbook. Rec. Pt. I, Vol. II, Pleading No. 8 (affidavits of Judge O'Donnell
and Judge Claiborne). See generally United States v. Gallo, 659 F.2d 110 (9th Cir. 1981).
104 Nev. 115, 139 (1988) State Bar of Nevada v. Claiborne
their March, 1981 American Express statements.
46
Again, however, respondent was denied
an opportunity fully to explore these events in evidentiary hearings before the federal district
court or before the United States Senate.
47
Nonetheless, for the purposes of these
proceedings, and in our view, these factual allegations are sufficiently supported to raise
serious questions about the propriety of tactics employed in the pursuit of the indictment and
prosecution of respondent.
C. The Federal Government's Bargain With
Joseph Conforte
After the Las Vegas grand jury failed to return an indictment against respondent, officials
within the Department of Justice, the FBI and the IRS began to pursue certain allegations
regarding respondent's association with a notorious felon by the name of Joseph Conforte.
Three subsequent grand juries were empaneled, two in Portland, Oregon, and one in Reno,
Nevada, in order to investigate allegations that respondent had solicited and accepted bribes
from Conforte while serving as a federal district judge. See United States v. Claiborne, 781
F.2d 1327, 1328-29 (9th Cir. 1986) (Reinhardt, J., dissenting).
The first Oregon grand jury proceeding involving respondent was convened on May 11,
1982. This grand jury investigated allegations concerning respondent's involvement with
Conforte in alleged violations of 18 U.S.C. 201 (bribery of a public official), and 18 U.S.C.
1952 (The Travel Act). The grand jury's mandate expired in December of 1982 without the
return of any indictment against respondent. The second Oregon grand jury was convened on
March 16, 1983. Similarly, this grand jury investigated, among other things, allegations that
respondent accepted bribes from Conforte. The second Oregon grand jury also never returned
an indictment against respondent. A third grand jury investigation was commenced in Reno,
Nevada, in June of 1983.
48
Unlike the two prior Oregon investigations, the Reno grand jury
heard the direct testimony of Conforte, and returned a seven-count indictment against
respondent on December 8, 1983, one day after Conforte testified before it.
49
As detailed
below, the factual history underlying the federal government's plea bargain negotiations
with Conforte and the concessions that the government ultimately extended in exchange
for Conforte's testimony raise additional questions about the integrity of investigatory
tactics employed in the pursuit of respondent's conviction.
____________________

46
Rec. Pt. I, Vol. II, Pleading No. 8.

47
Rec. Pt. I, Vol. III, Pleading Nos. 26, 27; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of hearings on
pretrial motions); Rec. Pt. I, Vol. IV, Pleading No. 37 (orders respecting pretrial motions); Senate Hearings,
supra note 15, Pt. 1 at 108, 690, 876, 1181 (rulings of Chairman Mathias respecting scope of the impeachment
committee's inquiry).

48
Rec. Pt. I, Vol. V, Pleading No. 47 at 4-6, and note 6.

49
Rec. Pt. I, Vol. I, Pleading No. 1.
104 Nev. 115, 140 (1988) State Bar of Nevada v. Claiborne
ment's plea bargain negotiations with Conforte and the concessions that the government
ultimately extended in exchange for Conforte's testimony raise additional questions about the
integrity of investigatory tactics employed in the pursuit of respondent's conviction.
Joseph Conforte is a well-known owner of a house of prostitution located in Storey
County, Nevada. Conforte's activities in Northern Nevada historically have attracted
extensive public attention and media coverage. For example, following the release in March
of 1976 of a Washoe County Grand Jury report detailing Conforte's associations and dealings
with local politicians, the Reno Evening Gazette and the Nevada State Journal began an
editorial campaign assailing Conforte's web of influence in local affairs. The newspapers'
editorial series spanned a period of more than three months and was intensified in May [of
1976] after Argentine heavyweight boxer Oscar Bonavena was shot and killed outside
Conforte's Mustang Ranch brothel.
50
Subsequently, three Gazette-Journal editorial writers
were awarded the Pulitzer Prize for editorial writing in recognition of their insightful and
constructive series condemning Conforte's influence and activities in Northern Nevada.
51
Apparently, however, the intensive public scrutiny focused upon Conforte had little effect on
his local activities.
In 1977, a ten-count indictment was filed against Conforte and his wife, Sally, charging
them with willfully attempting to evade and defeat employment withholding taxes in
violation of 26 U.S.C. 7201. See, e.g., United States v. Conforte, 457 F. Supp. 641 (D. Nev.
1978), cert. denied, 449 U.S. 1012 (1980) (decision denying Conforte's motion for new trial).
As the federal district court noted in the above-cited decision, Conforte is no stranger to the
criminal justice system. In particular, the court observed:
1. In 1960, he was convicted of extortion by a Nevada state court and was sentenced
to state prison.
2. Shortly after that conviction, he pled guilty to a federal income tax violation
charge in the District of Nevada and was sentenced by Judge William Mathes to federal
prison. While serving his sentence, Conforte made a motion to withdraw his plea of
guilty to the federal charge. That motion was heard by Judge Thompson and was
denied. The defendant was subsequently released from McNeil Island federal prison in
1965.
____________________

50
Gazette-Journal Writers Win Pulitzer Prize, Nevada State Journal, April 19, 1977.

51
Id.
104 Nev. 115, 141 (1988) State Bar of Nevada v. Claiborne
3. In 1968, Conforte was indicted and tried before Judge Thompson for a violation
of the Mann Act, 18 U.S.C. 2421 et seq. At the conclusion of the government's case,
Judge Thompson granted a motion for judgment of acquittal.
4. In 1970, the Internal Revenue Service filed a civil complaint for condemnation
and forfeiture of certain trailer houses used by Conforte in his prostitution business.
Again, the matter was heard by Judge Thompson, who decided the case in Conforte's
favor.
Id. at 645-46. Parenthetically, we note that respondent first became acquainted with Conforte
when respondent successfully defended him in 1967 against the above-noted charges alleging
that Conforte violated the Mann Act.
52

Further, in July of 1979, Conforte was again indicted in Washoe County and charged with
bribery of a Lyon County public official.
53
In the meantime, the federal district court had
entered judgments of conviction against the Confortes on four of the ten counts of evasion of
federal employment withholding taxes.
54
The Confortes appealed those convictions and the
subsequent denial of their motion for a new trial to the Ninth Circuit Court of Appeals. On
April 29, 1980, the Court of Appeals entered a decision affirming the judgments of
conviction in the tax case, but vacating portions of the sentences imposed by the district
court. See United States v. Conforte, 624 F.2d 869 (9th Cir.) cert. denied, 449 U.S. 1012
(1980). In part, the Court of Appeals concluded that although one of the five-year sentences
imposed on Joseph Conforte was entirely proper, the sentences imposed by the federal district
court on the remaining counts were improperly based upon a legal and factual conclusion for
which there was no support. Id. at 882-83. Accordingly, the case was remanded to the district
court for further sentencing. The Confortes then sought review in the United States Supreme
Court, and that court denied certiorari on December 1, 1980. See Conforte et ux. v. United
States, 449 U.S. 1012 (1980).
A resentencing hearing was scheduled for December 23, 1980, before the federal district
court in Reno, Nevada.55 The night before that hearing, however, Conforte fled to Mexico
carrying with him "at least a half a million dollars" in cash.56 He testified at respondent's
first trial that he fled the jurisdiction of the United States in order to avoid confinement
under his sentence of imprisonment.57 Thus, at the time Conforte left the United States,
he faced a sentence of imprisonment of at least five years, and possibly as much as
twenty years, pursuant to his tax conviction in federal court.
____________________

52
Rec. Pt. II, Vol. IV at 792; Rec. Pt. II, Vol. XII at 3013.

53
State v. Conforte, Case No. C79-1045, Second Jud. Dist. Ct., Washoe Co. (indictment filed July 2, 1979).

54
The federal district court sentenced Conforte to five years in prison on each of the four counts, the terms to
run consecutively for a total of twenty years. In addition, Conforte was fined $10,000 on each count, for a total
of $40,000. Mrs. Conforte was sentenced to concurrent prison terms of 4 years on each of the four counts;
however, execution of the sentence was suspended, and she was placed on probation. She was also fined
$10,000 on each count. See United States v. Conforte, 457 F. Supp. at 647.
104 Nev. 115, 142 (1988) State Bar of Nevada v. Claiborne
before the federal district court in Reno, Nevada.
55
The night before that hearing, however,
Conforte fled to Mexico carrying with him at least a half a million dollars in cash.
56
He
testified at respondent's first trial that he fled the jurisdiction of the United States in order to
avoid confinement under his sentence of imprisonment.
57
Thus, at the time Conforte left the
United States, he faced a sentence of imprisonment of at least five years, and possibly as
much as twenty years, pursuant to his tax conviction in federal court. Moreover, Conforte
faced prosecution in Washoe County, Nevada, pursuant to the indictment alleging bribery of a
local Lyon County official. In connection with that pending state criminal prosecution,
Washoe County District Attorney Cal Dunlap publicly avowed that in the event that Conforte
was convicted on the bribery charges, he would seek an habitual criminal enhancement
warranting the imposition of a life sentence because of Conforte's prior felony convictions.
58
Additionally, as a result of his flight from the United States, Conforte was indicted by a
federal grand jury on March 10, 1981, for failing to appear as required by the terms and
conditions of his bond in violation of 18 U.S.C. 3150(1).
59
The State of Nevada filed
similar charges against Conforte in connection with his subsequent failure to appear in the
Nevada bribery case.
60

At the time Joseph Conforte fled the jurisdiction of the state and federal courts, and
throughout the period during which he remained a fugitive from justice, the Confortes were
engaged in an ongoing dispute with the IRS over the exact amount of their income tax
liability, as well as their liability relating to the employment withholding taxes. See, e.g.,
Conforte v. C.I.R., 692 F.2d 587 (9th Cir. 1982). The exact amount of Conforte's overall tax
liability over the years has been difficult to assess. For example, in testimony before a federal
grand jury on April 13, 1982, Gerald Swanson, the former director of the IRS for the District
of Nevada, testified that since 1956 the IRS had been working to try to get Mr. Conforte in
conformance with the Income Tax laws of the United States."
____________________

55
Rec. Pt. II, Vol. IV at 710; United States v. Conforte, Case No. CR-R-77-00024 JLS, United States District
Court for the District of Nevada.

56
Id. at 713.

57
Id. at 712.

58
Conforte Life Term is Sought, Reno Evening Gazette, September 15, 1980. A review of the district court
file in State v. Conforte, No. C79-1045, Second Jud. Dist. Ct., Washoe Co., reveals that a supplemental
information alleging habitual criminal enhancement was filed in the district court on February 26, 1982.

59
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. G.

60
State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct., Washoe Co.
104 Nev. 115, 143 (1988) State Bar of Nevada v. Claiborne
Income Tax laws of the United States. Swanson further testified that Mr. Conforte arranged
his tax matters in such a fashion making it virtually impossible for the Internal Revenue
Service to determine his proper income.
61

According to Swanson, beginning in February of 1978, the IRS instituted jeopardy
assessment proceedings against the Confortes' assets because of the likelihood that Conforte
might flee the jurisdiction or place his assets outside of the collection reach of the Internal
Revenue Service.
62
Swanson further indicated that although the exact amount of Conforte's
tax liability had not been finalized, as of April 13, 1982, the IRS had liens of record of over
$26 million of jeopardy assessments asserted against Mr. and Mrs. Conforte.
63

In addition to the criminal and tax concerns facing Conforte, it is also noteworthy that at
least two civil suits were pending against him in federal court at the time of his departure.
Specifically, the family of the slain heavyweight contender, Oscar Bonavena, filed a civil
action on May 18, 1977, alleging that Conforte's negligent supervision of an employee
resulted in Bonavena's wrongful death.
64
Conforte was also named as a defendant in a civil
action asserting claims for false arrest and for the violation of the civil rights of an individual
arrested in connection with a fire at Conforte's house of ill repute.
65

Under these circumstances, in December of 1980, Conforte apparently decided to avail
himself of a warmer and more hospitable climate. Thus, he slipped across the border into
Mexico, sojourned briefly in Acapulco and Mexico City, and eventually took up residence in
Brazil, where he was free from the threat of extradition back to the United States.
66
Before
he entered Mexico, however, Conforte endeavored to test the federal government's
receptiveness to a deal respecting his most pressing concern, his pending imprisonment.
____________________

61
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. A at 9.

62
Id. at 11. See also Conforte v. U.S., 1980-1 U.S. Tax Cas. (CCH) para. 9159 (D. Nev. 1980) (court
determined that imposition of jeopardy assessments was justified and amount of assessments was reasonable).

63
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. A at 15. Swanson also indicated, however, that $26 million
overstated the Confortes' tax liability due to duplicative assessments. Id. at 31. See also In re Conforte, Case No.
82-966, United States Bankruptcy Court for the District of Nevada (disclosure statements).

64
DeBonavena v. Conforte, Case No. CV-R-77-81 ECR, United States District Court for the District of
Nevada (filed May 18, 1977).

65
Baliotis v. Del Carlo, et al., Case No. CV-R-79-281, United States District Court for the District of Nevada
(filed December 18, 1979).

66
Rec. Pt. II, Vol. IV at 714-15; see Treaty of Extradition Between the United States of America and the
United States of Brazil, Jan. 13, 1961, 15 U.S.T. 2093, T.I.A.S. No. 5691.
104 Nev. 115, 144 (1988) State Bar of Nevada v. Claiborne
Before he entered Mexico, however, Conforte endeavored to test the federal government's
receptiveness to a deal respecting his most pressing concern, his pending imprisonment. He
telephoned Geoffrey Anderson, the chief prosecutor for the federal strike force in Las Vegas.
67
Conforte testified at respondent's first trial that he had read in the newspapers that
Anderson was in charge of the strike force, and that Anderson and Judge Claiborne were
fighting or opposing each other.
68
Conforte told Anderson that the only thing he was
guilty of was owning a little brothel, and suggested that in exchange for some help from
Anderson, he could supply incriminating information about Judge Claiborne. Specifically,
Conforte stated, If you want him, I will give him to you in [sic] a platter.
69

It is unclear whether this telephone conversation with Anderson in late 1980 constituted
the first contact between Conforte and federal agents intent on investigating Judge Claiborne.
Specifically, Conforte testified at respondent's first trial that when he telephoned Anderson in
December 1980, he (Conforte) didn't know anything about an investigation [involving Judge
Claiborne].
70
Conforte further testified that before he left the country in 1980, he had never
met a special agent for the FBI named Dan Camillo.
71
Additionally, on November 2, 1982,
Joseph Yablonsky, the special-agent-in-charge of the Las Vegas office of the FBI, testified in
a related case that he had assigned an agent to contact Conforte only after Conforte had
telephoned Anderson in December of 1980.
72

On the other hand, respondent claims that Yablonsky had assigned special agent Dan
Camillo to contact Conforte in the early summer of 1980.
73
Respondent further asserts that
in the course of Camillo's visits with Conforte, Conforte was advised that Yablonsky was
willing to work out a deal if Conforte would deliver Judge Claiborne. According to
respondent, at that time, Conforte consistently maintained that he had nothing on the judge.
74
Respondent also alleges that after the Ninth Circuit Court of Appeals rendered its
affirmance of Conforte's tax conviction on April 29, 19S0, Yablonsky instructed Camillo to
take "one last shot" at Conforte due to Conforte's "frame of mind."
____________________

67
Rec. Pt. II, Vol. IV at 898, Pt. II, Vol. V at 933.

68
Rec. Pt. II, Vol. IV at 925.

69
Rec. Pt. II, Vol. IV at 899.

70
Rec. Pt. II, Vol. IV at 925-26.

71
Rec. Pt. II, Vol. IV at 897.

72
Rec. Pt. I, Vol. I, Pleading No. 6 at 93; Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986
(Letter Outlining Governmental Misconduct).

73
Respondent's Synopsis of Acts of Governmental Misconduct, Docket No. 17294, filed Aug. 29, 1986, at
11.

74
Id. at 11, 14.
104 Nev. 115, 145 (1988) State Bar of Nevada v. Claiborne
viction on April 29, 1980, Yablonsky instructed Camillo to take one last shot at Conforte
due to Conforte's frame of mind. Again, however, respondent maintains that Conforte
allegedly indicated at that time that he knew nothing that could implicate respondent in any
wrongdoing.
75

Most of respondent's assertions in this regard appear to be based on information disclosed
to reporters for the Las Vegas Sun in the late summer of 1982 by a federal source with
intimate knowledge of the operations of the Las Vegas FBI office.
76
In a hearing prior to
respondent's first trial, however, two Las Vegas Sun reporters declined to reveal the official
sources for those factual allegations.
77
Thus, in judging the credibility of the conflicting
accounts in this regard, this court is presented with some difficulty. We feel obligated to note,
however, that the reputations for veracity of Joseph Conforte, as well as Joseph Yablonsky,
have at times been subject to question. In particular, as discussed below, much of Conforte's
testimony at respondent's first trial and before the only grand jury to return an indictment
against respondent has been discredited by substantial evidence presented by the defense.
Additionally, it seems that Yablonsky was not always as truthful, or at least as
forthcoming, as one would expect in the case of a federal law enforcement official. In 1983,
for example, Yablonsky was censured and placed on probation by the FBI Director, William
Webster, as a result of improper inquiries Yablonsky had made to the United States Air Force
about the personnel records of a candidate for state office in Nevada, Brian McKay.
78
At the
time of Yablonsky's inquiries, McKay was running against Yablonsky's friend, Mahlon
Brown, in a hotly contested race for the office of Nevada State Attorney General. Reportedly,
Yablonsky first denied that he had made any such inquiries, then later admitted that he had
done so but denied that he was fishing for disparaging information about McKay that would
benefit his friend's campaign.
79
Although Director Webster characterized Yablonsky as a
highly competent and experienced field manager," Webster was also quoted as stating
that Yablonsky's actions "were inappropriate and made at a time and under
circumstances likely to bring into question the integrity of the FBI's inquiries.
____________________

75
Id. at 11.

76
Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986 (Letter Outlining Governmental
Misconduct); see also Rec. Pt. I, Vol. I, Pleading No. 6 at 68.

77
Rec. Pt. I, Vol. III, Pleading No. 27 at 287-88, 291.

78
Webster Nomination, supra note 17, at 150-51 (testimony of W. H. Webster). Director Webster stated that
this sanction was a very severe action for a career agent such as Yablonsky.

79
See Rec. Pt. I, Vol. I, Pleading No. 6 at 68. We observe that no information impugning McKay's integrity
was ever disclosed by Yablonsky's inquiries.
104 Nev. 115, 146 (1988) State Bar of Nevada v. Claiborne
field manager, Webster was also quoted as stating that Yablonsky's actions were
inappropriate and made at a time and under circumstances likely to bring into question the
integrity of the FBI's inquiries.
80
Director Webster also characterized Yablonsky's actions
as involving extremely bad judgment in utilizing the files of another agency to inquire about
Mr. McKay for a reason I did not consider adequate or sufficient.
81
Additionally, after his
retirement, Yablonsky was investigated by the FBI and a federal grand jury concerning his
failure to inform bank officials that his bank account had been mistakenly credited with
$40,000 as a result of a computer error. The mistaken credit apparently went undiscovered for
three years until it was ultimately revealed by a bank audit. The grand jury, under the
direction of the Justice Department's Public Integrity Section, declined to return a criminal
indictment against Yablonsky.
82

At any rate, it is uncontested that Conforte's overture to Anderson piqued the considerable
interest of some agents within the FBI, the Public Integrity Section, and the IRS. In June or
July of 1981, special agent Camillo and another FBI agent went to the residence of John
Colletti, Conforte's former bodyguard. Conforte telephoned Colletti's residence from Brazil
and spoke with the agents.
83
On or about this time, Conforte also engaged the services of
Nevada attorney Peter Perry for the sole purpose of assisting him in his negotiations with the
federal government.
84
Thereafter, during the period that Conforte remained a fugitive from
justice, numerous meetings between Conforte, Perry and agents of the FBI, the Public
Integrity Section and the IRS took place in Brazil, Costa Rica, and Mexico.
85

As the negotiations between Conforte, Peter Perry and the federal agents progressed, it
became clear that Conforte was demanding an expensive price in exchange for his testimony
that he had bribed Judge Claiborne. For example, Conforte refused to return to the United
States to testify unless the federal government guaranteed he would spend no more than one
year in prison.S6 Additionally, the negotiations involved a demand that Conforte's overall
tax liability be settled for approximately three and one-half million dollars.S7
____________________

80
Yablonsky Given Probation, Las Vegas Sun, July 2, 1983; FBI Censures Yablonsky for McKay Inquiry,
Las Vegas Review-Journal, July 2, 1983; Nevada AG: Time to Go, Joe' Yablonsky's Credibility Seen Nearly
Destroyed, Las Vegas Sun, March 27, 1983.

81
Webster Nomination, supra note 17, at 117.

82
Federal Jury Ends Yablonsky Probe, Las Vegas Review-Journal, April 21, 1985. See Webster Nomination,
supra note 17, at 116-17, 152.

83
Rec. Pt. II, Vol. IV at 717-18.

84
Rec. Pt. II, Vol. IV at 913.

85
Rec. Pt. II, Vol. IV at 719-26; State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist.
Ct., Washoe Co. (transcript of hearing on change of plea at 17, filed Jan. 11, 1984).
104 Nev. 115, 147 (1988) State Bar of Nevada v. Claiborne
prison.
86
Additionally, the negotiations involved a demand that Conforte's overall tax
liability be settled for approximately three and one-half million dollars.
87

This latter demand, of course, necessitated the participation and cooperation of IRS
officials in the negotiations. In an interview conducted by the Office of the United States
Treasury Inspector General, the former IRS District Director for Nevada, Gerald Swanson,
indicated that Yablonsky contacted Archie Banbury, an agent in the Criminal Investigation
Division of the IRS, in September of 1981, and briefed Banbury on the substance of
Conforte's demands.
88
Thereafter, according to Swanson, Banbury suggested that the IRS
should interview Conforte in Brazil and convene a grand jury to look into the Claiborne
matter.
89
Although Swanson was skeptical of Conforte's allegations because of his
familiarity with Conforte's history, he gave permission for an IRS agent to go to Brazil to
interview Conforte. Swanson, however, wanted Banbury to get corroborative evidence
before allowing the IRS to get involved in a grand jury proceeding as part of the deal' being
proposed by the FBI and the Department of Justice.
90
Following the IRS agent's return from
Brazil in December of 1981, Swanson remained skeptical because, in his view, no
corroborating smoking gun evidence was presented which could justify a grand jury
inquiry.
91
Further, a memorandum of Swanson's interview with the Inspector General's
office indicates that, based on a previous conversation with Yablonsky, it was clear to
Swanson
that Yablonsky had a Joe Louis mentality towards disposition of tax issues. In other
words, Yablonsky made it clear to Swanson that he felt that IRS could simply reduce
Conforte's tax liabilities along the lines of 10 cents on the dollar in exchange for
information Conforte allegedly had on Federal Judge Claiborne (along with other
concessions Conforte wanted).
92

According to FBI Director Webster, in February 1982, the IRS received a complaint from
Peter Perry alleging that Swanson may have been involved in soliciting a bribe from
Conforte. Perry claimed that Peter Lemberes informed him that Alex Lemberes could arrange
a reduction in Conforte's tax liability from $7 million to $3.5 million in exchange for
$350,000.
____________________

86
Rec. Pt. II, Vol. IV at 919.

87
Rec. Pt. II, Vol. V at 1004.

88
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. B at 7.

89
Id.

90
Id. at 8.

91
Id.

92
Id. at 8-9.
104 Nev. 115, 148 (1988) State Bar of Nevada v. Claiborne
million to $3.5 million in exchange for $350,000. The IRS and the FBI then began
investigating whether Swanson improperly disclosed tax information to Alex and Peter
Lemberes.
93

Subsequently, the FBI and the Public Integrity Section, assisted by agents of the IRS and
Conforte's attorney Peter Perry, reportedly initiated a sting operation targeting Swanson,
Alex Lemberes and Alex's brother, Peter Lemberes. Alex Lemberes, a close friend of
Swanson, was a former Green Beret commander, a graduate of West Point and a recipient of
the Army's Legion of Merit award.
94
To conduct this sting investigation known as
Confortescam, the FBI obtained the assistance of Conforte's attorney Peter Perry. The FBI
wired Perry with electronic listening and recording equipment and dispatched him to secure
incriminating evidence against Swanson and the Lemberes brothers in a conspiracy-bribery
scheme. In essence, Perry's role was to entice Peter Lemberes with a substantial monetary
incentive to persuade his brother Alex, and eventually Swanson, to conspire illegally to
reduce Conforte's tax liability.
95
Interestingly, attorney Perry thus simultaneously served as
counsel for Conforte, and as an agent for the federal government. Further, we note that just
prior to these events, Perry had served as counsel for Peter Lemberes in a criminal case in
Nevada. See e.g., Lemberes v. State, 97 Nev. 492, 634 P.2d 1219 (1981). Thus, it would
appear that in assisting the FBI, Perry was motivated by more than an upright desire to
uncover corruption. As Conforte's attorney, Perry had a vested interest in the outcome of the
investigation. Obviously, by implicating Swanson in criminal wrongdoing, Perry could much
improve Conforte's prospects of negotiating a favorable deal with the IRS.
Further, because of Swanson's skepticism about Conforte's proposed testimony
incriminating respondent, and his expressed concerns about the propriety of a significant
reduction in Conforte's tax liability, Swanson has asserted that federal agents may have
targeted him in the Confortescam sting in order to remove him as an obstacle to the deal'
that would help them hang a federal judge.'
96
Moreover, it has been alleged and reported
that Peter Lemberes may have been targeted in the government's Confortescam sting because
of rumors that he had threatened to disclose evidence allegedly linking Conforte with the
killing of Oscar Bonavena.97
____________________

93
Webster Nomination, supra note 17, at 240-41 (appendix).

94
Sting Snares Conforte Foes, Las Vegas Sun, October 10, 1982; Fed Bid to Frame IRS Boss Fizzles, Las
Vegas Sun, October 11, 1982.

95
Rec. Pt. I, Vol. II, Pleading No. 9; Pt. I, Vol. IV, Pleading No. 31, Exhibits A and B; Confortescam':
behind-the-Scenes Peek, Reno Gazette-Journal, July 15, 1984.

96
Rec. Pt. I, Vol. IV, Pleading No. 33, Ex. B at 10.
104 Nev. 115, 149 (1988) State Bar of Nevada v. Claiborne
threatened to disclose evidence allegedly linking Conforte with the killing of Oscar
Bonavena.
97

Perry's questionable undercover activities eventually resulted in grand jury indictments
against Alex and Peter Lemberes. The grand jury, however, declined to indict Gerald
Swanson. Although Alex Lemberes eventually pleaded guilty to a reduced charge, the press
has reported that he maintains he did nothing illegal, and that he only pleaded guilty in order
to negotiate a lesser sentence for his brother, who faced a possible maximum sentence of
twenty-five years.
98

Swanson, although not indicted, was transferred to an IRS post in another jurisdiction.
99
A Treasury Department investigator later tendered a report condemning the FBI-IRS sting
operation as very dangerous, misleading and poor work.' See United States v. Claiborne,
781 F.2d 1327, 1329 (9th Cir. 1986) (Reinhardt, J., dissenting). Again, as in the cases of
Eddie LaRue and Charles Lee, it would appear that there is indeed factual support for
respondent's assertion that in the pursuit of Judge Claiborne's removal from office, some
federal agents may have overreached and abused their authority by dealing harshly,
unjustifiably and apparently retributively with those who stood in the way of Judge
Claiborne's prosecution.
Conforte, on the other hand, received substantial concessions from the federal and local
authorities. In early December 1983, he returned to the United States and was taken into
custody by federal agents. On December 7, 1983, he testified before the federal grand jury
investigating Judge Claiborne in Reno, Nevada. As noted, the grand jury indicted respondent
Claiborne the following day. In exchange for Conforte's testimony before the grand jury and
at Judge Claiborne's subsequent trial, the Department of Justice agreed to recommend:
(1) that Conforte be resentenced in his federal tax conviction case to concurrent
five-year terms on each of the four counts upon which he was convicted;
(2) that all but 15 months of each of the five-year sentences be suspended; {3) that
any sentence imposed by the court should be served concurrently with any sentence
imposed on Conforte pursuant to pending charges in the State of Nevada;
____________________

97
Rec. Pt. I, Vol. I, Pleading No. 6 at 75.

98
U.S. v. Lemberes, Case No. 82-00034 EBH, United States District Court for the District of Nevada; Rec.
Pt. I, Vol. II, Pleading No. 9; Pt. I, Vol. I, Pleading No. 6; Confortescam: behind-the-Scenes Peek, Reno
Gazette-Journal, July 15, 1984. See also Webster Nomination, supra note 17, at 241 (appendix).

99
Webster Nomination, supra note 17, at 241 (appendix).
104 Nev. 115, 150 (1988) State Bar of Nevada v. Claiborne
(3) that any sentence imposed by the court should be served concurrently with any
sentence imposed on Conforte pursuant to pending charges in the State of Nevada;
(4) that the federal indictment charging Conforte with failure to appear for
resentencing in the tax conviction case should be dismissed;
(5) that the Department of Justice would assist Conforte in negotiating plea
agreements with regard to the charges pending against him in Nevada.
100

On December 9, 1983, Conforte appeared in Nevada district court and entered a negotiated
plea of guilty to the charge alleging bribery of a Lyon County official.
101
In accordance with
the plea negotiations, Nevada District Judge James Guinan sentenced Conforte to eighteen
months to be served concurrently with the sentence that Conforte would thereafter receive
pursuant to his federal conviction. In addition, Conforte was fined $10,000 and forfeited
$200,000 in bail. Judge Guinan dismissed the pending charge respecting Conforte's earlier
failure to appear in the state action, pursuant to the district attorney's recommendation.
102

On December 15, 1983, Conforte was resentenced pursuant to his tax conviction in a
federal district court in Washington, D.C.
103
Conforte's federal tax case had been transferred
from the District of Nevada to Judge Smith in the United States District Court for the District
of Columbia in 1982, by order of the Chief Justice of the Supreme Court, Warren Burger.
104
On December 15, 1983, Judge Smith resentenced Conforte in conformity with the terms of
the agreement set forth above.
As Judge Reinhardt of the Ninth Circuit has pointed out:
The reduction in Conforte's sentence may well have violated Fed. R. Crim. P. 35, see
United States v. Hetrick, 644 F.2d 752 (9th Cir. 1980); United States v. Pollack, 655
F.2d 243 (D.C.Cir. 1980), as well as 18 U.S.C. 3651 (1982), not to mention the
Justice Department's policy on tardy motions to reduce sentences.
____________________

100
Respondent's compendium, Docket No. 17294, filed Sept. 2, 1986 (Conforte Plea Agreement); Rec. Pt. II,
Vol. IV at 730-35; see also Webster Nomination, supra note 17, at 239-40 (appendix).

101
State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct., Washoe Co. (transcript of
hearing on change of plea filed Jan. 11, 1984).

102
Id. (transcript of hearing on change of plea filed Jan. 11, 1984, at 31-33) (judgment filed December 9,
1983).

103
Rec. Pt. II, Vol. IV at 734; Respondent's Compendium, Docket No. 17294, filed Sept. 2, 1986 (Conforte
Plea Agreement) (Dismissal of Conforte Indictment).

104
U.S. v. Conforte, Case No. CR-R-77-00024 JLS, United States District Court for the District of Nevada
(designation filed Oct. 4, 1982).
104 Nev. 115, 151 (1988) State Bar of Nevada v. Claiborne
See United States v. Claiborne, 781 F.2d 1327, 1329 (9th Cir. 1986) (Reinhardt, J.,
dissenting). In the Hetrick case, cited above, the court ruled that the 120-day time limit
established by Fed. R. Crim. P. 35 for reduction of a sentence is jurisdictional. See Hetrick,
644 F.2d at 756. Further, the court stated in Hetrick:
We held in United States v. United States District Court, 509 F.2d 1352 (9th Cir.),
cert. denied sub nom. Rosselli v. United States, 421 U.S. 962, 95 S.Ct. 1949, 44
L.Ed.2d 448 (1975), that the timely filing of a Rule 35 motion does not give a district
court jurisdiction to entertain subsequent, untimely Rule 35 motions. The second
motion will not be deemed to relate back to the first motion. 509 F.2d at 1356. Nor is
the jurisdictional defect cured by styling the subsequent motion as a motion for
reconsideration. Cf. United States v. United States District Court, 509 F.2d at 1356
(motion styled as a motion for clarification).
Id. (Footnote omitted.) In Conforte's case, the Ninth Circuit Court of Appeals affirmed
Conforte's conviction and five-year sentence on Count VII of the charging indictment on
April 29, 1980. See United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S.
1012 (1980). On April 8, 1981, Judge Reed, a federal district judge for the District of Nevada,
entered an order denying a motion filed by Conforte's attorneys seeking a reduction in the
sentence imposed in Count VII pursuant to Fed. R. Crim. P. 35.
105
Thus, in light of the
Hetrick case, it would appear that Judge Reinhardt reasonably questioned the propriety of
Judge Smith's order entered in December of 1983, resentencing Conforte well beyond the
120-day jurisdictional time limit set forth in Rule 35.
106

In regard to Conforte's tax liability, his agreement with the federal government expressly
stipulated: Mr.
____________________

105
U.S. v. Conforte, Case No. CR-R-77-00024 JLS, United States District Court for the District of Nevada;
see Rec. Pt. I, Vol. IV, Pleading 33, Exhibit F.

106
In United States v. Claiborne, 765 F.2d 784, 792 n. 2 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986),
the appellate panel which affirmed Judge Claiborne's conviction cited the case of United States v. Smith, 650
F.2d 206 (9th Cir. 1981), in rejecting Judge Claiborne's assertion that Conforte's sentence was illegally reduced.
Our reading of the Smith case reveals little if any support for the legality of the reduction of Conforte's sentence.
In Smith, the court acknowledged that a district court had some flexibility to retain jurisdiction over timely
motions for reduction of sentence for a reasonable time after the expiration of the 120-day time limit. Id. at
208-09. We would question whether Conforte's reduction of sentence occurred within a reasonable time.
Moreover, as noted, Judge Reed had already denied Conforte's initial motion to reduce his sentence. It may well
be, however, that the appellate panel properly concluded that Judge Claiborne lacked standing to raise the issue.
104 Nev. 115, 152 (1988) State Bar of Nevada v. Claiborne
Mr. Conforte shall not receive financial benefit of any kind because of this
agreement. The amount of any tax liability that Mr. Conforte may owe to the U.S.
Treasury shall be determined between the Internal Revenue Service and/or the Tax
Division, U.S. Department of Justice and himself. This agreement shall not favorably
influence the determination of such tax liability. In fact, as Mr. Conforte believes, his
cooperation as set forth herein has and may continue to detrimentally influence the
government's determination of such liability.
107

It would appear, however, that Conforte's financial prospects suddenly improved after he
began negotiating with the federal agents regarding the Claiborne matter. Conforte himself
testified at respondent's first trial in March of 1984, that although the IRS at one point
claimed his tax liability was in the neighborhood of $19 or $20 million, he eventually settled
his whole tax liability for $7.3 million.
108

In summary, our review of the factual record reveals that in the pursuit of an indictment
against Judge Claiborne, federal investigators and prosecutors convened no less than four
grand juries before the testimony of a convicted felon, brothel owner and fugitive from justice
finally convinced the Reno grand jury panel to return an indictment. The record before us
further reveals substantial indications that a limited number of federal agents overzealously
pursued a vendetta against respondent and quite possibly abused the authority and the public
trust vested in them by virtue of their offices. In so doing, these agents may well have utilized
retributive and retaliatory tactics in an effort to discredit those who maintained a less
vindictive and more balanced perspective regarding the criminal investigatory process.
Finally, those agents, who for whatever reasons became intent upon the successful
prosecution of Judge Claiborne, were reduced to striking a bargain with an individual
whose past history and whose financial and fugitive status provided considerable
incentives for him to distort the truth, as well as substantial indications that he would not
be disinclined to do so.
____________________

107
Respondent's Compendium, Docket No. 17294 filed Sept. 2, 1986 (Conforte Plea Agreement); Rec. Pt. II,
Vol. IV at 730-35; see also Webster Nomination, supra note 17, at 239-40 (appendix).

108
Rec. Pt. II, Vol. V at 1002, 1005. Conforte's testimony in this regard finds some support in pleadings
which comprise the public record in Chapter 11 Bankruptcy proceedings involving the Confortes' assets. On
February 15, 1984, for example, the IRS and the Confortes entered into a stipulation wherein the IRS withdrew
its objections to a proposed bankruptcy reorganization plan and set forth secured claims against the Confortes
totaling approximately $18,446,530.47. The IRS also stated therein that its unsecured priority claims totaled
approximately $653,614.08. A document dated November 17, 1984, entitled Debtors Opposition to the
Government's Motion to Convert to a Chapter 7 Proceeding or In the Alternative to Dismiss, states that
negotiations had reduced a $25,000,000 lien against the Confortes' assets to $7,300,000. It is entirely possible,
therefore, that Conforte may have testified credibly on this point. See In re Sally Conforte, Case No. 82-966,
United States Bankruptcy Court for the District of Nevada (Petition for Relief Under Chap. 11 filed Nov. 26,
1982).
104 Nev. 115, 153 (1988) State Bar of Nevada v. Claiborne
those agents, who for whatever reasons became intent upon the successful prosecution of
Judge Claiborne, were reduced to striking a bargain with an individual whose past history and
whose financial and fugitive status provided considerable incentives for him to distort the
truth, as well as substantial indications that he would not be disinclined to do so. As noted
hereafter, the record of respondent's first trial discloses abundant evidence that, whether or
not they perceived it to be so, federal agents may well have purchased perjurious testimony in
their bargain with Joseph Conforte.
D. The Grand Jury Indictment
An analysis of the relationship between the grand jury indictment and respondent's
conviction on tax counts at the conclusion of his second trial will be discussed in some detail
hereafter. At this point it is important to reemphasize that the indicting grand jury in Reno
was the only panel to hear the testimony of Conforte. We can only speculate as to the nature
of the impact Conforte had on the members of the panel. Without the cleansing process of
cross-examination and the presentation of documentary evidence to illuminate the true
character of Conforte's offerings, it is conceivable that the grand jury found Conforte's
testimony credible. It is also conceivable that the panel concluded that Claiborne's prior
representation of Conforte as an attorney supported an inference of an ongoing association
that was corrupt. As previously noted, if the grand jury believed that Conforte enriched
Claiborne with bribe money, that fact alone would support two of the tax-related counts since
Claiborne's tax returns failed to reflect such ill-gotten gain. In any event, it cannot reasonably
be gainsaid that Conforte's testimony was the linchpin upon which the indictment was based.
Despite the suspect character of the Conforte claims, as exposed during the abortive first trial,
the Conforte foundation was later excised leaving the Conforte-generated, but now
unconnected with Conforte, tax counts, as the vehicle upon which to achieve a conviction. As
will later be seen, there remains gnawing doubt as to whether the second trial was free of the
Conforte taint. At any rate, the significance of the tainted grand jury indictment is an aspect of
the overall circumstances we are compelled to consider in addressing the subject of
Claiborne's disciplinary entitlements.
E. Respondent's First Trial
As noted, on December 8, 1983, a Reno, Nevada federal grand jury indicted respondent on
seven felony counts. Four of the seven counts of the indictment, the so-called Conforte
counts, involved Conforte's assertions that respondent had solicited and accepted bribes
from Conforte.
104 Nev. 115, 154 (1988) State Bar of Nevada v. Claiborne
accepted bribes from Conforte. Two of the remaining counts involved respondent's income
tax returns for the years 1979 and 1980. The final count charged that respondent had filed in
1979 a false financial disclosure statement to the Judicial Ethics Committee for the year 1978.
109

On September 9, 1983, Chief Justice Warren Burger designated Judge Walter E. Hoffman,
a senior judge from the Eastern District of Virginia, to preside over Judge Claiborne's trial.
110
Previously, Judge Hoffman had been specially designated by Chief Justice Burger to preside
over the grand jury investigations of respondent in Portland, Oregon, and in Reno, Nevada.
All of the district judges for the District of Nevada eventually recused themselves from any
participation in respondent's case, and Judge Hoffman was designated after Chief Judge
Browning of the Ninth Circuit requested the appointment of an out-of-circuit district judge to
preside over the trial.
111
See United States v. Claiborne, 781 F.2d 1327, 1330 (9th Cir. 1986)
(Reinhardt, J., dissenting).
Prior to the commencement of the trial, respondent's counsel filed in excess of thirty
pre-trial motions.
112
Judge Hoffman denied many of these motions without conducting
evidentiary hearings respecting the factual allegations set forth therein.
____________________

109
Rec. Pt. I, Vol. I, Pleading No. 1. Essentially, the indictment alleged that while serving as a federal judge:
(1) Respondent solicited and accepted a bribe from Joseph Conforte in return for being influenced in
his performance of an official act. . . in violation of 18 U.S.C. 201(c). (Count I)
(2) Respondent violated the provisions of 18 U.S.C. 1343 by devising and executing a scheme to
defraud and obtain money from Conforte and by utilizing an interstate telephonic communication in the
execution of that fraudulent scheme. (Count II)
(3) Respondent attempted to persuade a witness subpoenaed to testify before a Portland, Oregon
grand jury to give false testimony in violation of 18 U.S.C. 1503. (Count III)
(4) Respondent, under penalties of perjury, signed income tax returns for the years 1978, 1979, and
1980 which he knew were not true and correct as to every material particular in violation of 26 U.S.C.
7206(1). (Counts IV, V, VI)
(5) Respondent willfully and knowingly filed a false financial disclosure statement for the year 1978
to the Judicial Ethics Committee in violation of 18 U.S.C. 1001. (Count VII)
Count IV involved Conforte in that the government alleged that, among other income, in 1978 respondent
failed to report the monies he allegedly received in bribes from Conforte.

110
Rec. Pt. IV, Vol. III, Pleading No. 32 at 3.

111
Id.

112
Rec. Pt. IV, Vol. III, Pleading No. 32 (minutes of first trial); and see, e.g., Motion to Dismiss Indictment
for Selective Prosecution, Rec. Pt. I, Vol. II, Pleading No. 8; Motion to Dismiss for Grand Jury Abuse and to
Discover Grand Jury Materials and for Evidentiary Hearing, id., Pleading No. 9; Motion to File Supplemental
Memorandum and Evidentiary Proffer on Motion to Quash Indictment, id., Pleading No. 17.
104 Nev. 115, 155 (1988) State Bar of Nevada v. Claiborne
many of these motions without conducting evidentiary hearings respecting the factual
allegations set forth therein. In the matters in which evidentiary hearings were allowed, Judge
Hoffman severely limited the scope of the inquiries.
113
We are hesitant to question the
propriety of many of Judge Hoffman's rulings in this regard prior to and during respondent's
trials. In particular, we do not deem it appropriate to comment upon whether, as a matter of
federal law, respondent had set forth sufficient allegations supported by affidavits or other
evidence to establish a prima facie case entitling him to pretrial evidentiary hearings in all the
matters raised. We observe, however, that from our perspective and in fulfilling our
responsibility to review all the circumstances underlying respondent's conviction, it is indeed
unfortunate that a more comprehensive factual record was not developed respecting
respondent's claims of investigative and prosecutorial abuse. Others, as well, have voiced
similar concerns regarding respondent's allegations and have suggested that investigative and
prosecutorial abuses violated respondent's right to due process of law, thereby rendering
respondent's conviction the fruit of the poisoned tree.
114

For example, shortly after the United States Senate voted to remove respondent from
office, Senator David H. Pryor addressed the Senate in part as follows:
After sitting for days as a member of the impeachment committee, I have attempted
to the best of my ability to fairly judge and determine the case of Harry Claiborne. I
must admit to my colleagues that a month ago, I, like most Americans, wondered why
we were giving him even the benefit of the doubt. As the weeks passed, after reading
transcripts and listening to and observing witness after witness, I must say at this time,
and during this day, that at least in my mind there was a reasonable doubt about his
willfulness or his deliberate intent to defraud the Government.
But, Mr. President, there is no reasonable doubt in my mind about another aspect of
this case, and that is the long arm of the U.S. Government and the abuse of power that
ultimately led to Judge Claiborne's conviction.
I have concluded that he was targeted by the Federal Bureau of Investigation in a
very arbitrary and capricious manner. If we have any doubts about Judge Claiborne
having been a target, then I as these questions: Why did our Government forgive $16
million in back income taxes to a criminal fugitive named Conforte to come back
from Brazil and help make a case against Judge Claiborne?
____________________

113
Rec. Pt. I, Vol. III, Pleading Nos. 26, 27; Rec. Pt. I, Vol. IV, Pleading No. 28 (transcripts of pretrial
hearings of January 9, 10 and 11, 1984); Rec. Pt. I, Vol. IV, Pleading No. 37 (order respecting various motions,
filed February 17, 1984).

114
132 Cong. Rec. S15779 (daily ed. Oct. 9, 1986) (statement of Senator Pryor).
104 Nev. 115, 156 (1988) State Bar of Nevada v. Claiborne
Why did our Government forgive $16 million in back income taxes to a criminal
fugitive named Conforte to come back from Brazil and help make a case against Judge
Claiborne?
Why did Harry Claiborne, unlike most other citizens, not have the opportunity to
face an IRS audit in the civil division before criminal prosecution charges occurred?
Why did one IRS agent assigned to this sting operation of Harry Claiborne become
so incensed and rebelled to the degree that he refused to participate, and ultimately was
demoted and sent to another State?
Why was it that after administering a polygraph test to Harry Claiborne, a test which
he passed, the polygraph operator, himself, became a target of intimidation by the
Federal Bureau of Investigation?
What is going on in this country when we allow this sort of practice to occur?
In the Article of Impeachment No. III, we were asked by the managers to impeach
from office Harry Claiborne. Why? Because, simply, he was convicted by a lower court
and a jury.
My question concerning Article III this afternoon was, how was that conviction
actually obtained?
Once again, I have concluded in my own mind that had Harry Claiborne not been a
target of the Federal Government, had Harry Claiborne's accountant not been
intimidated by the U.S. Government, had Harry Claiborne had the opportunity to
submit all evidence into the lower court decision and trial, had an appeal en banc to the
Ninth Circuit Court of Appeals been granted, I believe the case of Harry Claiborne
might not have been before the U.S. Senate today.
See 132 Cong. Rec. S15778 (daily ed. Oct. 9, 1986) (statement of Senator Pryor); see also
132 Cong. Rec. S15779 (daily ed. Oct. 9, 1986) (remarks of Senator Heflin expressing the
view that there is no question that most of the Members of the Senate feel that there should
be an investigation by an appropriate committee pertaining to the possible overreaching by
the executive branch into the judicial branch and an investigation into the procedure which
has been called targeting); 132 Cong. Rec. S16824 (daily ed. October 16, 1986) (remarks of
Senator Levin indicating that the evidence clearly suggests that the Government engaged in a
pattern of selective prosecution, prosecutorial overreaching, and perhaps intimidation of
witnesses and other improprieties). Such concerns ultimately prompted the United States
Senate to adopt a resolution on October 18, 1986, calling for hearings before the Senate
Judiciary Committee on procedures for protecting citizens against improper investigations
and prosecutorial practices.
104 Nev. 115, 157 (1988) State Bar of Nevada v. Claiborne
ing citizens against improper investigations and prosecutorial practices. See S. Res. 514 (99th
Cong., 2d Sess., 132 Cong. Rec. S17058 (daily ed. Oct. 18, 1986)).
One of the most troubling allegations in this regard concerns the possibility that prior to
Conforte's grand jury appearance and respondent's first trial, some federal agents involved in
respondent's investigation and prosecution may have known or had substantial cause to
suspect that Conforte's bribery allegations were false. The possibility that this occurred has
significant implications. It is arguable, for example, that Conforte's grand jury testimony may
have had a contaminating effect upon the only grand jury to hear his testimony and to return
an indictment against respondent. Arguably, the entire indictment may have been tainted by
Conforte's testimony, including the counts seemingly unconnected with Conforte's
allegations. Moreover, if indeed all the counts of the indictment returned by the grand jury
were infected by the testimony of Conforte, and the government had reasonable cause to
suspect that Conforte's testimony was perjurious, then it may be appropriate to depreciate the
substantial respect and weight normally accorded a judgment of conviction for the purposes
of disciplinary action. See SCR 114; Selling v. Radford, 243 U.S. 46, 51 (1917). Although
respondent was eventually convicted on the tax counts alone and those counts were seemingly
unrelated to Conforte's allegations, we must question whether an indictment on any of the
counts would have been returned, or whether any prosecution whatsoever would have gone
forward in the absence of an investigative and prosecutorial mind-set bent on prosecuting
respondent at all costs, and in the absence of Conforte's contaminating and infectious
allegations disparaging respondent's integrity. See, e.g., Mesarosh v. United States, 352 U.S.
1, 14 (1956) (where government informant had given false testimony, Court concluded that
informant had poisoned the water in this reservoir, and the reservoir cannot be cleansed
without first draining it of all impurity). Conforte's allegations and testimony underlying the
first count of the indictment, and the manner in which the prosecution proceeded on that
count, are particularly troublesome in this regard.
Specifically, Count I of the indictment alleged:
Between on or about December 14, 1978 and December 15, 1978, in the District of
Nevada, the Defendant, HARRY EUGENE CLAIBORNE, being a public official, that
is a United States District Court Judge for the District of Nevada, directly and
indirectly, corruptly asked, demanded, exacted, solicited, sought, accepted, received
and agreed to receive for himself a thing of value, that is United States currency in the
amount of $30,000, from Joseph Conforte, in return for being influenced in his
performance of an official act, that is the decisions and rulings . . . with regard to
two consolidated motions to quash grand jury subpoenas then pending before him,
said motions captioned, In the Matter of Application of Olga Irene Karaway For an
Order to Show Cause, Misc.
104 Nev. 115, 158 (1988) State Bar of Nevada v. Claiborne
in return for being influenced in his performance of an official act, that is the decisions
and rulings . . . with regard to two consolidated motions to quash grand jury subpoenas
then pending before him, said motions captioned, In the Matter of Application of Olga
Irene Karaway For an Order to Show Cause, Misc. R-78-36, and In Re Grand Jury
Subpoena Served on Sessina Lowe, Misc. R-78-35; in violation of Title 18, United
States Code, Section 201(c).
115

(Emphasis added.) Prosecutions under 18 U.S.C. 201(c) (1982) (bribery of public officials)
are governed by 18 U.S.C. 3282 (1982), which provides:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried,
or punished for any offense, not capital, unless the indictment is found or the
information is instituted within five years next after such offense shall have been
committed.
In general, the period of limitations imposed by this statute begins to run at the moment the
crime is complete. See United States v. Coia, 719 F.2d 1120 (11th Cir. 1983), cert. denied,
466 U.S. 973 (1984). Because the grand jury did not indict respondent on Count I until
December 8, 1983, and because of the five-year limitation provision established by 18 U.S.C.
3282, the government was necessarily restricted to proof that the alleged bribery occurred
after December 8, 1978.
In this respect, respondent has observed:
In one of the first interviews with FBI agents, CONFORTE related that the bribery
scenario in Count I occurred in late November, 1978. At the trial, CONFORTE testified
as to whether he had told the FBI the event occurred in late November, 1978: Could
be. CONFORTE testified he is not sure he did not state late November, he just didn't
recall. . . . The time of this scenario would not have been acceptable to the prosecution
because the asserted offense would have been barred from prosecution by the
applicable statute of limitations.
116

At the trial, however, Conforte testified that on the evening of Monday, December 11, 1978,
he was at his home watching football when he received a telephone call from Judge
Claiborne. According to Conforte, Judge Claiborne requested him to come up to my place
tomorrow night.
____________________

115
Rec. Pt. I, Vol. I, Pleading No. 1.

116
Rec. Pt. I, Vol. VI, Pleading No. 63 at 10, citing Conforte testimony in Rec. Pt. II, Vol. IV at 823-24.
104 Nev. 115, 159 (1988) State Bar of Nevada v. Claiborne
up to my place tomorrow night.
117
Conforte further testified that on Tuesday, December 12,
1983, he made arrangements to drive a ladyfriend's car to respondent's Reno apartment
where he met with Judge Claiborne later that evening at approximately 8:00 p.m. to 9:00 p.m.
118
Conforte further testified at trial that the following events then transpired:
1. Respondent escorted Conforte into a kitchen-dining room area and Conforte sat
down and faced respondent across a table, or a counter separating the dining area from
the kitchen.
119

2. Judge Claiborne gestured or indicated that his apartment might be bugged and
wrote a message on a yellow pad of paper and passed it to Conforte stating, I need
$30,000 and don't worry about your case. Conforte read the message and wrote in
reply Which case? The judge replied, again in writing, The subpoenas.
120

3. Conforte then wrote back I don't have it with me, I will bring it tomorrow.
According to Conforte, the judge then shook his head meaning it was okay, burned
the paper upon which these communications were written, and washed the ashes down
the kitchen sink.
121

4. The following day, on Wednesday, December 13, 1978, Conforte claimed he got
together $30,000 in cash partly from the receipts of the brothel and, to the best of
[his] memory, from cash he had available in a safe deposit box at the Nevada National
Bank in Sparks, Nevada.
122

5. Later, on the night of Wednesday, December 13, 1978, Conforte claimed that he
went back to Judge Claiborne's Reno apartment and personally delivered the
$30,000 to the judge.123
____________________

117
Rec. Pt. II, Vol. III at 587.

118
Id. at 587, 590-91.

119
Rec. Pt. II, Vol. III at 592-94; Rec. Pt. II, Vol. IV at 837-38.

120
Rec. Pt. II, Vol. III at 593, 596-97. Subpoenas had been issued in the fall of 1978 to two of Conforte's
employees in a federal voting fraud investigation probing Conforte's voter registration efforts in Storey County,
Nevada. See Rec. Pt. II, Vol. III at 576. Conforte hired counsel for the two subpoenaed employees who filed
motions in federal court to quash the issuance of the subpoenas. Id. at 579-80.

121
Rec. Pt. II, Vol. III at 597-98.

122
Rec. Pt. II, Vol. III at 604-09. At the trial, under cross-examination by respondent's counsel, Conforte
hedged somewhat as to whether he actually withdrew money from his safe deposit box at Nevada National Bank
on the date in question. He acknowledged, however, that he had told the grand jury that he did in fact do so. Rec.
Pt. II, Vol. IV at 845.
104 Nev. 115, 160 (1988) State Bar of Nevada v. Claiborne
Claiborne's Reno apartment and personally delivered the $30,000 to the judge.
123

Thereafter, at respondent's trial, the defense elicited testimony and presented evidence
conclusively establishing that the events described in Conforte's above-referenced testimony
simply could not have occurred on two successive days during the week in question.
First, it was established at trial that the Conforte story described above could not have
occurred because Conforte was not even in Reno, Nevada, on December 12, 1978, the night
that Conforte claimed he first visited respondent's apartment and respondent had allegedly
solicited a $30,000 bribe. Specifically, an employee of the United States Department of State
testified that a review of official passport records revealed that Conforte personally applied
for and picked up a passport on an emergency basis in New York City on December 12, 1978.
The passport official further testified that if another person had picked up the passport for
Conforte there would have been a letter of authorization. Apparently, the official records
revealed no such letter.
124
Additionally, Conforte's passport records indicated that he entered
Brazil sometime between and including December 13 and 18, 1978.
125
It should be noted
that, at one point in his testimony, Conforte himself acknowledged that he personally had
obtained a passport in New York City, on an emergency basis.
126

Second, an operations manager at Nevada National Bank testified that firm and solid
procedures of the bank required customers wishing to gain access to their safe deposit boxes
to sign an entry ticket before they would be allowed such access.
127
The operations manager
further testified that she personally conducted a search of the bank's records of the entry
tickets of Conforte's safe deposit box and found that the records indicated that Conforte had
not accessed his safe deposit box between December 5, 1978 and December 15, 1978.
128
As
respondent noted in a motion to dismiss the indictment against him filed shortly before the
second trial, the government had knowledge of these bank records prior to the first trial.
129
Third, FBI Special Agent Wick testified at trial that his investigation of the apartment
complex where respondent resided in 197S revealed that some studio apartments in the
complex contained a long counter at which a person could sit and which divided the open
areas of the apartments from the kitchen areas.
____________________

123
Rec. Pt. II, Vol. III at 614-15.

124
Rec. Pt. II, Vol. XI at 2756-82; Rec. Pt. I, Vol. VI, Pleading No. 63 at 8.

125
Id. at 2780.

126
Rec. Pt. II, Vol. IV at 884-85.

127
Rec. Pt. II, Vol. VI at 1376-77.

128
Rec. Pt. II, Vol. II at 1375-76.

129
Rec. Pt. II, Vol. VI at 1370; Rec. Pt. I, Vol. VI, Pleading No. 63 at 11. We note in this regard that
Conforte's assertion that he would sometimes enter his safe deposit box without signing the entry record is belied
by the
104 Nev. 115, 161 (1988) State Bar of Nevada v. Claiborne
Third, FBI Special Agent Wick testified at trial that his investigation of the apartment
complex where respondent resided in 1978 revealed that some studio apartments in the
complex contained a long counter at which a person could sit and which divided the open
areas of the apartments from the kitchen areas. Such an arrangement would have been
consistent with Conforte's description of respondent's apartment. Wick testified, however,
that he did not find such an arrangement in the apartment in which respondent resided.
130
Further, the manager of the apartment complex testified that respondent's apartment did not
have a bar, or a counter of any kind where persons could sit on either side and look at one
another.
131
Thus, the defense established that the floorplan of respondent's apartment was
simply not as Conforte had described it in his sworn testimony.
It is apparent from the foregoing evidence that it was quite conclusively established at
respondent's first trial that the bribery scenario alleged by Conforte could not possibly have
occurred on the dates in question.
132
Moreover, because Conforte's passport revealed that he
was clearly not in the United States after December 18, 1978, and because the statute of
limitations required the government to prove that the bribery occurred after December 8,
1978, the prosecution was necessarily restricted to proof that the alleged bribery occurred
between December 8, 1978 and December 18, 1978.
In addition, it was established at the trial that Judge Claiborne ultimately ruled in favor of
the government and against Conforte's interests in the matter involving the subpoenas which
Conforte claimed was the basis of the alleged $30,000 bribe. Specifically, in April of 1979,
Judge Claiborne denied the motions filed on behalf of the two Conforte employees seeking to
quash the service of the grand jury subpoenas.133 Further, Leland Lutfy, the assistant
United States Attorney who handled these subpoena matters for the government,
testified that he observed nothing "irregular on the part of Judge Claiborne in his handling
of [the] case.
____________________
testimony of the bank operations officer. Specifically, the officer testified that if a bank employee had allowed
someone to enter a safe deposit box without signing in properly, the bank would have dismissed that employee
and since officers of the bank always sit towards the back of the bank, in the safe deposit area, she was sure if
someone had gone in without signing, we would be aware of it. See Rec. Pt. II, Vol. VI at 1378. We further
observe that although this particular bank operations officer was not stationed at the Sparks branch on the exact
date in question, she had been employed by Nevada National Bank since 1975 and testified that the safe deposit
entry procedures were the same for all of our offices. Id. at 1377.

130
Rec. Pt. II, Vol. X at 2336.

131
Rec. Pt. II, Vol. X at 2357.

132
It is noteworthy that in spite of the fact that Conforte's agreement with the government was predicated
upon Conforte giving truthful testimony, and in spite of the considerable evidence that he failed to do so, the
government fulfilled all its obligations under its agreement with Conforte and, thus far, has declined to prosecute
Conforte for perjury.
104 Nev. 115, 162 (1988) State Bar of Nevada v. Claiborne
quash the service of the grand jury subpoenas.
133
Further, Leland Lutfy, the assistant United
States Attorney who handled these subpoena matters for the government, testified that he
observed nothing irregular on the part of Judge Claiborne in his handling of [the] case.
134
Thus, Judge Claiborne's actual rulings in that matter were not favorable to Conforte's best
interests.
As we previously indicated, the untruthful nature of Conforte's allegations underlying
Count I of the indictment posed inherent difficulties of proof for the prosecution, which
suggest, at the very least, that the prosecutors had reasonable cause to question the veracity of
Conforte's scenario prior to trial. Interestingly, respondent's counsel has observed that during
Conforte's grand jury testimony not once . . . was [Conforte] ever asked . . . to state the day,
the day of the month, or even the year, when the scenario of Count I was supposed to have
occurred.
135

Moreover, the record reveals that the prosecution had considerable difficulties in
pinpointing the exact dates that the offense in Count I allegedly occurred. In particular, the
record reveals that the government prosecutors served three successive amended demands for
notice of alibi upon respondent prior to trial. See Fed. R. Crim. P. 12.1(a) (upon written
demand of attorney for the government, the defendant shall within ten days serve upon the
government's attorney a written notice of the defendant's intention to offer a defense of alibi
stating the specific place at which the defendant claims to have been at the time of the alleged
offense and the names and addresses of the witnesses upon which the defendant intends to
rely). On January 23, 1984, for example, the government notified respondent's counsel that it
believe[d] the evidence [would] establish that the offense alleged in Count I occurred at
respondent's Reno apartment, [b]etween approximately 6:00 p.m. and 11:00 p.m. on
December 14, 1978; and between approximately 6:00 p.m. and 11:00 p.m. on December 15,
1978. . . .
136
In response, respondent submitted a notice of intention to offer the testimony
of Mary Hilt, the official court reporter in 1978 for the federal court in Reno, Nevada.
Respondent indicated that Ms. Hilt would testify that she was with respondent from
approximately 7:00 p.m. to 10:00 p.m. on December 14, 1978.
137
Later, at the trial, Ms. Hilt
did in fact testify that on December 14, 1978, she drove respondent to his apartment at the
end of the workday, and later, at approximately 7:00 p.m. to 7:30 p.m.,
____________________

133
Rec. Pt. II, Vol. X at 2498-99.

134
Rec. Pt. II, Vol. X at 2503.

135
Rec. Pt. I, Vol. VI, Pleading No. 63 at 13.

136
Rec. Pt. I, Vol. II, Pleading No. 18 at 2.

137
Rec. Pt. I, Vol. IV, Pleading No. 39.
104 Nev. 115, 163 (1988) State Bar of Nevada v. Claiborne
7:00 p.m. to 7:30 p.m., she picked up respondent at his apartment and drove him to a car lot
in Reno. Further, Ms. Hilt testified that she and respondent later dined together at a Reno
restaurant, and that she returned respondent to his apartment that evening at approximately
10:00 p.m.
138
Similarly, respondent's counsel submitted a notice of intention to offer the
testimony of numerous witnesses as well as evidence obtained from airline records
establishing that respondent was in Las Vegas, Nevada, at the time in question on the night of
December 15, 1978.
139

Thereafter, after investigating the evidence revealed in respondent's notice of alibi, on
March 9, 1984, two days after respondent filed his notice of alibi, the prosecution filed a
Second Amended Demand For Notification of Intention to Offer Alibi Defense.
140
In this
demand, the prosecution asserted that recently conducted government interviews and
investigation [had] revealed that the crime alleged in Count I . . . may have occurred on days
immediately preceding the December 14-15 cited dates cited in the indictment. Accordingly,
the prosecution amended its demand for notice of intention to offer an alibi to the offense
charged in Count I, to include the hours of 6:00 p.m. through 11:00 p.m. on the dates between
and including December 12, 1978, and December 15, 1978.
141
On March 12, 1984, the date
that the jury selection for the trial was set to commence, the prosecution filed a third amended
demand, once again enlarging the time frame to encompass the period between and including
December 11 and December 15, 1978.
142
These events suggest that Conforte's position was
sufficiently flexible to shift with the strength of respondent's alibi evidence.
A hearing before Judge Hoffman was conducted just prior to the start of the jury selection
on the morning of March 12, 1984, relating to the propriety of the government's second and
third amended demands. At this hearing, respondent's counsel represented to the court that
substantial time and resources over a period of six weeks had been expended in an attempt to
piece together respondent's whereabouts on the particular dates of December 14 and 15, 1978,
in reliance upon the government's indication that it would attempt to prove the facts alleged in
Count I specifically occurred on those dates.
143
Further, counsel represented that the defense
team had expended substantial time preparing the opening argument to the jury which
would stress the fact that respondent could effectively refute the government's
allegations that the alleged offense occurred on December 14 and 15, 197S.144 Counsel
also articulated the substantial time and difficulties involved in trying to refresh the
recollections of potential witnesses who might have been able to assist respondent in
reconstructing and establishing his exact whereabouts during an entire week over five
years before.
____________________

138
Rec. Pt. II, Vol. XII at 2856-59.

139
Rec. Pt. I, Vol. IV, Pleading No. 39 and No. 43 at 5.

140
Rec. Pt. I, Vol. IV, Pleading No. 40.

141
Id.

142
Rec. Pt. I, Vol. IV, Pleading No. 42.

143
Rec. Pt. I, Vol. IV, Pleading No. 43 at 4-5.
104 Nev. 115, 164 (1988) State Bar of Nevada v. Claiborne
paring the opening argument to the jury which would stress the fact that respondent could
effectively refute the government's allegations that the alleged offense occurred on December
14 and 15, 1978.
144
Counsel also articulated the substantial time and difficulties involved in
trying to refresh the recollections of potential witnesses who might have been able to assist
respondent in reconstructing and establishing his exact whereabouts during an entire week
over five years before. Finally, counsel argued that severe prejudice to respondent's defense
would occur if the prosecution was allowed to expand the time frame of the alleged offenses
in accordance with its last-minute demands. Accordingly, defense counsel urged the court to
hold the government to proof that the offense alleged in Count I took place as originally
represented by the prosecution. Alternatively, defense counsel requested a two-week
continuance of the trial so that respondent could effectively investigate and discover
respondent's whereabouts between and including December 11 and December 15, 1978.
Counsel observed that [i]t's not just a question of responding [to the government's amended
demands], . . . it's a question of being properly prepared to defend the case.
145
Judge
Hoffman ultimately ruled, however, that although respondent should not be required to
respond to the government's new demands within the time frame provided in Fed. R. Crim. P.
12.1, the prosecution would not be limited to proof that the alleged offense took place on
December 14 and 15, 1978. The judge also denied respondent's motion for a continuance.
146
Prior to the ruling, the prosecutor objected to the continuance, noting that the actual
presentation of respondent's case would not even start for a period of three weeks and that
respondent would have a full week to conduct any investigation he needs.
147
Judge
Hoffman, in refusing the two-week delay, stated, All right. It's your responsibility. I'm not
going to worry about it.
148
Thus, the issues of fundamental fairness and due process of law
were left to another time and another court. However, the issue relating to Judge Hoffman's
refusal to grant a continuance was ultimately rendered moot when the jury at the first trial
could not agree upon a verdict as to any of the seven counts upon which respondent was
indicted, and when the prosecution elected to proceed only on the counts unrelated to
Conforte's allegations in the second trial.149
____________________

144
Id. at 8.

145
Id. at 15.

146
Id. at 21-28.

147
Id. at 28. We note in this regard that the actual trial commenced on March 15, 1984, three days after the
above-referenced hearing. In the opening remarks to the jury on the first day of trial, the prosecution summarized
the Conforte bribery scenario and indicated that it took place some time after the 10th of December. The week
after the 10th of December. See Rec. Pt. II, Vol. I at 13.

148
Rec. Pt. I, Vol. IV, Pleading No. 43 at 28.
104 Nev. 115, 165 (1988) State Bar of Nevada v. Claiborne
indicted, and when the prosecution elected to proceed only on the counts unrelated to
Conforte's allegations in the second trial.
149

Although prosecutor Shaw specifically represented to Judge Hoffman that no prosecution
witnesses had changed their stories in light of the notice of alibi provided by respondent, it
strains credulity to suppose that at some point, in the course of these events and prior to the
commencement of the first trial, the prosecution did not begin to suspect that the difficulties it
was encountering in terms of proof might well have stemmed from a scenario that was simply
not verifiable in truth. Nonetheless, in spite of these obstacles the government prosecutors
insisted upon sending to the jury the counts based upon the obviously suspect accusations
volunteered by Conforte.
150
See United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.
1974) (prosecutor who discovers perjury by a grand jury witness after indictment must inform
the defendant, the trial court and the grand jury so that the indictment can be cured); see also
United States v. Bracy, 566 F.2d 649, 655 (9th Cir. 1977), cert. denied, 439 U.S. 818 (1978).
The defense did not discover the evidence establishing that Conforte was absent from the
Reno area on December 12, 1978, until well after the first trial had begun.
151
Prior to the
discovery of that information, however, the defense had subpoenaed a member of this court to
testify as to his personal knowledge of certain facts at respondent's first trial.
152
Pursuant to
that subpoena, on March 30, 1984, this court's present Chief Justice, E.M. Gunderson,
testified that he and Judge Claiborne had dinner together at a hotel in downtown Reno,
Nevada, on December 12, 1978, and that he was with Judge Claiborne from approximately
7:30 p.m. to 11:00 p.m. on that particular night.
153
Quite apart from Chief Justice
Gunderson's testimony, however, it was conclusively established that respondent could
not possibly have solicited a bribe from Conforte on the night of December 12, 197S,
because, as the United States State Department official unequivocally confirmed, on
December 12, 197S, Conforte was in fact in New York City picking up his passport.
____________________

149
Rec. Pt. II, Vol. XVI at 3780 (court declared a mistrial as to all counts in first trial); Rec. Pt. I, Vol. VI,
Pleading No. 58 (government's motion to dismiss all but counts V, VI, and VII for purposes of second trial).

150
It is important to note that Conforte's testimony that he paid respondent a second bribe in March of 1979,
in Portland, Oregon, was also discredited during the course of the first trial. See Rec. Pt. II, Vol. XII at 2973-98;
Rec. Pt. II, Vol. XIV at 3394 (testimony of Ben and Susan Johnson, and Clyde R. Maxwell contradicting
Conforte's scenario that he only met with respondent in an underground garage while in Portland and indicating
that Conforte was seen with respondent in the hallway of the federal courthouse); see also Rec. Pt. II, Vol. III at
635-47; Pt II, Vol. IV at 868 (setting forth Conforte's version of the Portland bribery scenario).

151
Rec. Pt. II, Vol. IX at 2142-55 (transcript of proceedings of March 27, 1984, on defense motion for order
directing the issuance of subpoena duces tecum).

152
Rec. Pt. II, Vol. XII at 2834.

153
Id. at 2846.
104 Nev. 115, 166 (1988) State Bar of Nevada v. Claiborne
apart from Chief Justice Gunderson's testimony, however, it was conclusively established that
respondent could not possibly have solicited a bribe from Conforte on the night of December
12, 1978, because, as the United States State Department official unequivocally confirmed,
on December 12, 1978, Conforte was in fact in New York City picking up his passport.
On April 13, 1984, after a lengthy trial and prolonged deliberations, the jury announced
that it was hopelessly deadlocked and was unable to come to a unanimous verdict on any of
the seven counts charged in the indictment. Accordingly, Judge Hoffman declared a mistrial
and ordered that the case be retried.
154
Judge Hoffman further directed that the retrial would
commence on July 31, 1984.
155

On June 27, 1984, the prosecution filed a motion seeking to dismiss the Conforte counts
of the indictment.
156
The prosecution expressed the belief that the evidence presented in the
first trial relating to the Conforte counts may have distracted the jury in its consideration
of [the remaining counts] and contributed to its inability to reach a verdict. . . .
157
Thus,
after subjecting respondent to prolonged grand jury investigations and a lengthy, sensational
trial based on Conforte's accusations of bribery and corruption, all accompanied by extensive
media coverage, the prosecution finally, impliedly admitted that Conforte's allegations lacked
substance.
158
Nonetheless, in light of the intense publicity surrounding the allegations of
bribery and corruption of a federal judge by a brothel owner, respondent's reputation and
integrity were sullied notwithstanding the jury's failure to convict on any of the counts at the
first trial. The allegations of corruption reported in the media were given added credence by
the prosecution's refusal to recognize explicitly the questionable veracity of Conforte's
accusations, by its continued adherence to the terms of the Conforte bargain, and by the
failure to seek the criminal prosecution of Conforte on charges of perjury. In our view, given
the conduct of the prosecution and the intense media scrutiny of the evidently false bribery
accusations, there can be little doubt that the public's perception of respondent's character and
integrity was severely diminished within the Reno community. This publicity may well have
affected respondent's ability to obtain a fair second trial from a jury untainted by the
spurious allegations linking him with a notorious brothel owner and attacking his honesty
and integrity. See, e.g., United States v. Claiborne, 765 F.2d 7S4, S00 {9th Cir. 19S5), cert.
denied, 475 U.S. 1120 {19S6) {discussing trial judge's refusal to excuse two trial jurors
for cause thus requiring defendant's use of peremptory challenges); see also Rec. Pt. IV,
Vol.
____________________

154
Rec. Pt. II, Vol. XVI at 3778-83.

155
Id. at 3784.

156
Rec. Pt. I, Vol. VI, Pleading No. 58.

157
Id.

158
It appears that under Rule 14 of the Federal Rules of Criminal Procedure and existing case law, Garris v.
United States, 418 F.2d 467 (D.C. Cir. 1969), the government could have moved to merely sever, rather than
dismiss, the Conforte counts if it perceived the counts to have any merit.
104 Nev. 115, 167 (1988) State Bar of Nevada v. Claiborne
fair second trial from a jury untainted by the spurious allegations linking him with a notorious
brothel owner and attacking his honesty and integrity. See, e.g., United States v. Claiborne,
765 F.2d 784, 800 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986) (discussing trial judge's
refusal to excuse two trial jurors for cause thus requiring defendant's use of peremptory
challenges); see also Rec. Pt. IV, Vol. I, Pleading No. 3 at 34-39 (Claiborne's opening brief
on appeal citing voir dire testimony of the two prospective jurors in question). Although the
prosecution's decision no longer to pursue the Conforte counts in the second trial prompted
media criticism of the prosecution's tactics, the damage to respondent's public image
undoubtedly had already been done.
159

The costs of defending against the false Conforte accusations must be calculated not only
monetarily but also in human terms taking into account the substantial opprobrium and
obloquy to which respondent has been exposed. As we discuss in more detail below, these
factors are relevant to our deliberations in the instant matter and are appropriately considered
in mitigation of any conduct warranting discipline. See In re Ross, 99 Nev. 657, 660, 668
P.2d 1089, 1092 (1983); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984). Further, we may
appropriately consider whether respondent obtained an impartial evaluation in the second trial
from a jury untainted by the Conforte allegations of corruption and dishonesty in assessing
the weight to be accorded respondent's conviction for disciplinary purposes. SCR 114; Selling
v. Radford, 243 U.S. 46, 51 (1917).
____________________

159
In this regard, we note that one such criticism, an editorial entitled Conforte Reels in Some Mighty Big
Suckers, appeared in the Reno Gazette-Journal on June 29, 1984. From our review of the record of the first trial,
as summarized above, we are hard-pressed to dismiss or devalue the insights expressed by the Reno
Gazette-Journal concerning the motives and actions of some of the federal agents involved. In particular, the
editorial observed that retaliation against respondent may have been a primary motivation for the investigation
and prosecution, and that the government dug and dug, and when Conforte put out his bait, the government
swallowed it right up to the fishing pole. Additionally, the editorial observed that Conforte's testimony at
Claiborne's trial was riddled time and again by the defense, and recited the major contradictions in Conforte's
allegations which we have detailed above. Further, the editorial observed that [t]he defense discovered all this
[the contradictory evidence] easily. Why couldn't the Justice Department? Because Justice was too busy with its
retaliation to bother with the facts. See Conforte Reels in Some Mighty Big Suckers, Reno Gazette-Journal, June
29, 1984. Although we are inclined to accord general respect for the observations of the editorial, we would add,
as a matter of clarification, that the questionable conduct involved was not undertaken by the Justice
Department, the FBI or the IRS as a whole, but was instead the indiscretion of a very limited number of people.
104 Nev. 115, 168 (1988) State Bar of Nevada v. Claiborne
One of the most compelling reasons for focusing at length on the Conforte aspects of the
Claiborne prosecution is because it is cogently arguable that in spite of an unrelenting
prosecutorial commitment, no criminal indictment would have issued without the facile
foundation supplied by Conforte.
160
Although our record does not include transcripts of any
of the grand jury proceedings, it is strongly inferable that government allegations of
Claiborne's failure to report the Conforte bribe money on his tax returns infected the grand
jury proceedings in both Oregon and Reno. In fact, it appears from our overall survey of the
record available to us, that the tax counts evolved from the Conforte nexus to the ultimate
case that was unmoored from its initial Conforte foundation. This evolution of the tax counts
has great significance, it seems, for it fairly implicates an entirely different scenario for
Claiborne that would have altogether obviated the criminal indictment and conviction.
Although we will hereafter examine in some detail the 1979 and 1980 tax returns relevant to
Claiborne's criminal conviction, suffice it to observe here that absent the patently criminal
nature of the alleged Conforte involvement in Claiborne's generation of taxable income,
other, more reasonable circumstances and inferences likely would have prevailed. For
example, the record reflects, as we will hereafter specify, that Claiborne's 1979 and 1980 tax
returns were legitimate prospects for a civil audit by the Internal Revenue Service. In the
context of a civil audit, it appears beyond speculation to suggest that Claiborne's former tax
accountant and C.P.A., Joseph C. Wright, would have approached the subject of his former
client's taxes much differently than he did in the criminal arena.
161
As will be seen hereafter,
there is substantial evidence to support Claiborne's contention that he never concealed income
from his accountants or otherwise sought to evade payment of his tax obligations.
____________________

160
We take judicial notice of the fact that this is not the first occasion when Conforte sought to exercise a
maleficent influence on the future course of the lives of public officials in the State of Nevada. In Conforte v.
State, 77 Nev. 269, 362 P.2d 274 (1961), Conforte was convicted of extortion in threatening the respected
district attorney of Washoe County if he did not arrange the dismissal of a criminal charge against Conforte.
Similarly, in 1983, Conforte entered a plea of guilty for attempting to bribe the district attorney of Lyon County
in order to secure a brothel license. State v. Conforte, Case Nos. C79-1045 and C83-1879, Second Jud. Dist. Ct.,
Washoe Co. (transcript of hearing on change of plea filed Jan. 11, 1984).

161
Wright, who had undergone lung surgery and radiation therapy in 1982, also moved his office, destroyed
various papers thought unimportant, and was subjected to prolonged and intensive preparation by federal agents
prior to his trial testimony. Moreover, he admitted that most of his testimony was based upon reconstruction of
events as assisted by federal agents, rather than independent recollection. Wright also expressed concern for his
own well-being during his involvement with government authorities over the Claiborne matter. See Senate
Hearing, supra note 15, Pt. 1 at 534, 555, 557-58, 559-61, 565-66.
104 Nev. 115, 169 (1988) State Bar of Nevada v. Claiborne
accountants or otherwise sought to evade payment of his tax obligations. The Conforte
connection simply cannot be ignored in any fair analysis of respondent's predicament,
including his entitlement to further discipline by this court.
F. The Second Trial and Subsequent Appellate
and Congressional Proceedings
On July 10, 1984, Judge Hoffman granted the prosecution's unopposed motion to dismiss
the first four counts of the indictment pending against respondent.
162
The second trial thus
proceeded on only those counts involving respondent's income tax returns for the years 1979
and 1980, and the count pertaining to respondent's judicial financial disclosure report for
1978. Once again, respondent filed pretrial motions attacking the validity of the entire
indictment because of investigative and prosecutorial misconduct. In addition, respondent
argued that the entire indictment should be dismissed because the perjurious testimony of
Conforte had unfairly prejudiced the indicting grand jury. Respondent renewed his requests
for evidentiary hearings and discovery on his allegations of governmental abuses.
163
Further,
defense counsel sought the recusal or disqualification of Judge Hoffman from further
participation in the case, alleging that the judge had demonstrated bias against respondent in
the first trial.
164
Judge Hoffman subsequently denied these pretrial motions and, thereafter,
the retrial commenced on July 31, 1984.
165

On August 10, 1984, the jury in the second trial returned guilty verdicts on the two income
tax related counts. Respondent was acquitted on the charge that he had submitted a false
judicial financial disclosure report.
166
On October 3, 1984, Judge Hoffman entered a
judgment of conviction, pursuant to the jury's verdict, and sentenced respondent to serve two
years in federal prison on each count, the terms to be served concurrently. Respondent was
also fined a total of $10,000.
167
In addition to the $10,000 fine, Judge Hoffman assessed
costs of prosecution in the amount of $14,384 against respondent.
168
A specially designated
three-judge panel comprised of senior judges from the second, seventh and tenth circuits
heard respondent's appeal and affirmed his conviction.
____________________

162
Rec. Pt. I, Vol. VI, Pleading No. 58; Rec. Pt. I, Vol. VI, Pleading No. 62.

163
Rec. Pt. I, Vol. VI, Pleading Nos. 63-67.

164
Rec. Pt. I, Vol. V, Pleading Nos. 49, 51; Rec. Pt. I, Vol. VI, Pleading No. 57.

165
Rec. Pt. I, Vols. V and VI, Pleading Nos. 50, 56, 61, 68; Rec. Pt. IV, Vol. I, Pleading No. 4 at 70.

166
Senate Hearings, supra note 15, Pt. 3 at 1488-89 (transcript of second trial).

167
Rec. Pt. I, Vol. VI, Pleading No. 75.

168
Rec. Pt. I, Vol. IX, Pleading No. 98.
104 Nev. 115, 170 (1988) State Bar of Nevada v. Claiborne
A specially designated three-judge panel comprised of senior judges from the second,
seventh and tenth circuits heard respondent's appeal and affirmed his conviction. See United
States v. Claiborne, 765 F.2d 784 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986).
Thereafter, defense counsel filed a petition for rehearing and a suggestion of appropriateness
of rehearing en banc with the Ninth Circuit Court of Appeals.
169
The petition for rehearing
was denied by the same senior circuit judges who heard respondent's appeal, and the Ninth
Circuit Court of Appeals sitting en banc voted upon and rejected the request for an en banc
rehearing.
170
Six out of the twenty-five judges recused themselves from this vote and three
judges dissented from the outcome.
171
Respondent, thereafter, petitioned the United States
Supreme Court for a writ of certiorari. That Court denied the petition without comment in
April of 1986. See Claiborne v. United States, 475 U.S. 1120 (1986). Respondent began
serving his sentence in May of 1986, after the Ninth Circuit Court of Appeals denied his
request for a stay of execution of sentence.
172

In September of 1986, trial proceedings were instituted in the United States Senate on four
articles of impeachment voted by the House of Representatives.
173
In an unprecedented
procedure, evidence was presented to a twelve-member special committee of the Senate,
rather than to the Senate as a whole. Notably, respondent was once again denied an
opportunity to solicit and present detailed evidence concerning his allegations of
governmental and prosecutorial misconduct leading to his indictment and subsequent
conviction.
174
The Senate committee, however, did allow respondent's counsel to present
witnesses and other evidence pertaining to Judge Claiborne's allegations of improper
prosecutorial influence and coaching of witnesses at the trials and grand jury proceedings.
175

On October 9, 1986, the full Senate voted on the four articles of impeachment. The
necessary two-thirds of the members voted guilty on all of the articles except Article III,
which premised respondent's removal from office solely on the basis of his conviction.
____________________

169
Rec. Pt. IV, Vol. II, Pleading No. 8.

170
Rec. Pt. IV, Vol. IV, Pleading No. 44 at A-125 (Order of United States Court of Appeals for the Ninth
Circuit, No. 84-1294, filed Dec. 10, 1985).

171
The three dissents were written by Judge Ferguson, see United States v. Claiborne, 781 F.2d 1325 (9th
Cir. 1985), Judge Reinhardt, see United States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986), and Judge
Pregerson, see United States v. Claiborne, 781 F.2d 1334 (9th Cir. 1986).

172
Rec. Pt. IV, Vol. III, Pleading No. 23.

173
Senate Hearings, supra note 15, Pt. 1 at 6-10.

174
Senate Hearings, supra note 15, Pt. 1 at 689-91.

175
Senate Hearings, supra note 15, Pt. 1 at 848-913 (testimony of D. Skelton, R. Jesinger and L. Halper).
104 Nev. 115, 171 (1988) State Bar of Nevada v. Claiborne
respondent's removal from office solely on the basis of his conviction. The requisite
two-thirds of the Senate did not view this as an adequate and appropriate basis upon which to
remove respondent from office.
176

As we previously observed, it is neither our function nor within our jurisdiction to sit in
review of the federal and congressional proceedings resulting in respondent's conviction and
removal from office. Nonetheless, just as the United States Senate declined to remove
respondent from his office on the sole ground that he was convicted of violating the
provisions of 26 U.S.C. 7206(1), so must we consider more than just the fact of
respondent's conviction in discharging our disciplinary function. In essence, we view it as our
obligation to scrutinize carefully the entire record heretofore compiled in this matter in order
to weigh those factors which reflect upon respondent's fitness to practice law and to make an
independent factual determination regarding the extent of the bar discipline that is warranted
by the whole course of respondent's conduct and career, as well as the circumstances
underlying his conviction. See Sloan v. State Bar, 102 Nev. 436, 726 P.2d 330 (1986); In re
Cochrane, 92 Nev. 253, 549 P.2d 328 (1976); In re Kristovich, 556 P.2d 771 (Cal. 1976).
Moreover, as previously suggested, we have determined that in light of the substantial
indications of investigative and prosecutorial improprieties, we are obligated to examine the
record of the federal court proceedings to ascertain whether any violations of due process of
law should diminish the weight normally accorded a judgment of conviction in disciplinary
matters.
____________________

176
132 Cong. Rec. S15761 (daily ed. Oct. 9, 1986) (Roll call vote on Article III). We note that Senator
Howell T. Heflin has publicly remarked on this topic:
Along these same lines, during the Senate floor trial of Judge Claiborne, many of my colleagues believed
that a prior criminal conviction in either federal or state court was sufficient basis for impeachment. The
third article of impeachment passed by the House of Representatives against Judge Claiborne stipulated
that the prior conviction of Judge Claiborne was, itself, an adequate offense for removal from office.
While I believe that a Senate impeachment trial should certainly take any prior conviction into
consideration, I did not believe that the conviction, alone, constituted sole or determinative grounds for
impeachmentsimilarly, I do not believe that the verdict of not guilty in a criminal case absolves a
defendant in an impeachment trial. Rather, I believe an impeachment trial should always be separate and
distinct from a trial in a federal or state court. Therefore, when the Senate voted on this article of
impeachment, I voted present, and was joined by 34 other senators. Because a two-thirds majority of the
Senate did not vote guilty on this article, it was not approved, and precedent was not set.
Speech of Senator Howell T. Heflin Before the American Judicature Society on the Federal Impeachment
Process (Feb. 6, 1988) at 9.
104 Nev. 115, 172 (1988) State Bar of Nevada v. Claiborne
Accordingly, with these obligations in mind, in our review of the second trial and the
proceedings which followed, we have focused primarily on three major categories of facts
and circumstances relevant to our deliberations. First, we have focused on those facts relevant
to the fairness and impartiality of the grand jury proceedings resulting in the indictment upon
which respondent was tried and convicted. Second, we have considered all the facts and
evidence disclosed in the second trial, as well as in the Senate impeachment hearings, which
bear upon the question of respondent's willful and knowing violation of the income tax code
in the years 1979 and 1980. Third, we have focused upon those facts relevant to the issue of
whether the federal judicial and congressional proceedings were conducted in such a manner
so as to afford respondent a fair and full opportunity to present his defense.
1. CONCERNS AND CONSEQUENCES OF THE GRAND
JURY INDICTMENT
In his pretrial pleadings, and on appeal, respondent argued that the counts in the
indictment upon which he was tried and convicted in the second trial were the product of a
biased grand jury which was prejudiced by perjurious testimony.
177
Specifically, respondent
maintained that as a matter of fundamental fairness an accused has the basic right to an
indictment returned by a legally constituted and unbiased grand jury.
178
See Costello v.
United States, 350 U.S. 359 (1956). Respondent supported this contention by noting that only
one of the three grand juries that had investigated him had returned an indictment, and that
the indicting grand jury was the only one that had actually heard Conforte's testimony.
179
Further, as noted, respondent argued on appeal that not once during Conforte's grand jury
appearance did the prosecution ever question Conforte respecting the specific dates upon
which the bribe alleged in Count I took place.
180
Additionally, respondent pointed to the
numerous instances detailed above, wherein testimony and evidence adduced at the first
trial substantially contradicted and discredited Conforte's testimony.
____________________

177
Rec. Pt. I, Vol. VI, Pleading No. 63 (pretrial motion to dismiss indictment); Rec. Pt. IV, Vol. I, Pleading
No. 3 (Claiborne's opening brief on appeal).

178
Rec. Pt. I, Vol. VI, Pleading No. 63 at 5.

179
The prosecution attempted to explain away this fact by noting that the term of the first Portland grand jury
expired before returning an indictment, and that the second Portland grand jury was never asked to return an
indictment. See Rec. Pt. IV, Vol. II, Pleading No. 6 at 19; Rec. Pt. I, Vol. V, Pleading No. 47 at 4-6. In our view,
however, this explanation only serves to highlight the apparent significance and importance which the
prosecution attached to Conforte's grand jury testimony as it pertained to all the counts and buttresses
respondent's contention that the grand jury was unduly influenced and prejudiced by Conforte's perjury.

180
Rec. Pt. IV, Vol. I, Pleading No. 3 at 12. We have been unable to verify this allegation because the
transcript of the grand jury proceedings is not
104 Nev. 115, 173 (1988) State Bar of Nevada v. Claiborne
Additionally, respondent pointed to the numerous instances detailed above, wherein
testimony and evidence adduced at the first trial substantially contradicted and discredited
Conforte's testimony. Respondent also argued in his appeal that the prosecution's three
amended demands for notices of intention to rely on an alibi defense strongly implied that
prior to the first trial federal agents and prosecutors knew, or at least had good cause to
suspect, that Conforte's testimony was self-serving and perjurious. Thus, respondent
maintained on appeal that his conviction should be reversed because the entire indictment
was the product of a grand jury persuaded by perjurious testimony that Judge Claiborne was a
corrupt judge. Respondent noted that the prosecution had conceded that the Conforte counts
may have distracted the jury in the first trial. Thus, it was likely that the grand jury, in the
absence of the evidence discrediting Conforte's scenario, may have been unfairly influenced
against respondent by Conforte's testimony. In essence, respondent asserted that the
indictment on the counts unrelated to Conforte's accusations was unfairly obtained and that
those counts were no more than the tail of the dog.'
181
See United States v. Hogan, 712
F.2d 757, 761 (2d Cir. 1983) (dismissal of indictment is justified if necessary to eliminate
prejudice to a defendant or, pursuant to court's supervisory power, to prevent prosecutorial
impairment of grand jury's independent role); United States v. Samango, 607 F.2d 877, 882
(9th Cir. 1979) ([a]lthough deliberate introduction of perjured testimony is perhaps the most
flagrant example of misconduct, other prosecutorial behavior, even if unintentional, can also
cause improper influence and usurpation of the grand jury's role.); United States v. Basurto,
497 F.2d 781, 785-87 (9th Cir. 1974) (due process considerations prohibit the prosecution
from obtaining an indictment based on material testimony known to be perjurious, and
conviction was reversed where the prosecuting attorney failed to take appropriate action to
cure the indictment after pretrial discovery of the perjury). See also United States v. Bracy,
566 F.2d 649, 655 (9th Cir. 1977), cert. denied, 439 U.S. 818 (1978).
On appeal, however, the specially designated appellate panel concluded: There is no
evidence to support [Judge Claiborne's] assertions.
____________________
included in the record before us. Respondent explained in his brief on appeal that because he was not accorded
an evidentiary hearing on his pretrial motion to dismiss the indictment, the Conforte grand jury testimony was
not made part of the record. . . . Id. at 11. We note, however, that the prosecution never refuted respondent's
allegation that Conforte was not questioned before the grand jury regarding the specific dates on which the bribe
alleged in Count I had occurred.

181
Rec. Pt. I, Vol. VI, Pleading No. 63 at 6.
104 Nev. 115, 174 (1988) State Bar of Nevada v. Claiborne
There is no evidence to support [Judge Claiborne's] assertions. The defendant has made
no showing, beyond mere speculation, that Conforte gave perjured testimony before the
grand jury or at the first trial. Nor has he made any showing that the Government had
any reason to believe that Conforte's testimony was perjured. Speculation cannot justify
this court's intervention into the grand jury's proceeding. See United States v. Chanen,
549 F.2d 1306, 1312 (9th Cir. 1977) (discussing separation of powers reasons for
court's refusal to intervene in grand jury proceedings), cert. denied, 434 U.S. 825, 98
S.Ct. 72, 54 L.Ed.2d 83. Under these circumstances, the Government's presentation of
Conforte's testimony to the grand jury was not the sort of flagrant misconduct required
to justify dismissal of the indictment under the Due Process Clause of our supervisory
powers. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.
1983), cert. denied, . U.S. ., 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984).
See United States v. Claiborne, 765 F.2d at 792 (footnote omitted).
Moreover, the appellate panel concluded that even if Conforte did perjure himself before
the grand jury, his testimony was not material to the counts of the indictment unrelated to his
allegations and upon which Judge Claiborne was convicted. Id. Accordingly, the panel held
that the trial judge committed no abuse of discretion in refusing to dismiss defendant's
indictment due to presentation of perjury before the grand jury. Id. (Citation omitted.)
Although we cannot fault the legal analysis set forth in the appellate panel's opinion, we
must respectfully disagree with the factual predicate upon which that analysis is based. As we
have set forth in some detail above, the enormity of the concessions that the government
extended to Conforte in exchange for his testimony, and the conclusive nature of the evidence
adduced at the first trial contradicting and discrediting Conforte's allegations, persuade us that
respondent's allegations of perjury amounted to much more than mere speculation.
Additionally, we note that Conforte was not resentenced in accordance with the terms of
his agreement with the government until after he testified before the grand jury and an
indictment had been obtained. In Franklin v. State, 94 Nev. 220, 225-26, 577 P.2d 860, 863
(1978), this court stated: mitted to a theory quite possibly inconsistent with the truth and
the [search] for truth.
By bargaining for specific testimony to implicate a defendant, and withholding the benefits of
the bargain until after the witness has performed, the prosecution becomes
104 Nev. 115, 175 (1988) State Bar of Nevada v. Claiborne
mitted to a theory quite possibly inconsistent with the truth and the [search] for truth.
We deem this contrary to public policy, to due process, and to any sense of justice.
(Footnote omitted.) Even though respondent was not convicted on the Conforte counts, and
the agreement between Conforte and the prosecution expressly provided that its terms were
not dependent upon any conviction resulting from Conforte's testimony, we are inclined to
view the manner in which the indictment apparently was obtained in the instant case with
similar concern. In our view, the facts surrounding the prosecution's presentation of
Conforte's testimony to the grand jury implicates the issues of public policy, due process and
a sense of justice.
Moreover, our review of the record indicates that Conforte's testimony could well have
had a material effect, not only upon the indicting grand jury, but also upon the outcome of
respondent's second trial. At the outset of the investigation, it appears that there was more
than a mere casual nexus between the Conforte allegations and the income tax violations for
which respondent was ultimately convicted. For example, in September of 1982, the Public
Integrity Section of the Justice Department initially obtained access to respondent's 1978 and
1979 income tax returns through an ex parte order issued by Judge Hoffman. The order was
issued upon the representations of Justice Department prosecutors that there was reasonable
cause to believe based upon information believed to be reliable that respondent may have
solicited and accepted bribes from Conforte.
182
Thus, it appears that the initial investigation
into respondent's tax returns began as a direct result of Conforte's allegations.
Additionally, it cannot be questioned that Conforte's allegations raised serious questions
about respondent's honesty and integrity. As we have suggested, Conforte's aspersions on
respondent's character were the subject of extensive media attention prior to and during the
first trial. Thus, it is likely that the jury venire in the second trial, as well as the indicting
grand jury, may well have been exposed to and influenced by Conforte's accusations.
183
Where, as here, the determination of guilt was predicated upon a finding that respondent
willfully and knowingly signed materially false income tax returns, Conforte's allegations of
corruption may well have had a material impact upon all the counts of the indictment returned
by the grand jury, as well as the verdict of guilt rendered by a trial jury from a community
exposed to extensive media coverage of these false accusations.
____________________

182
Rec. Pt. I, Vol. VI, Pleading No. 66 (attachment to government's opposition to motion to dismiss).

183
Rec. Pt. IV, Vol. I, Pleading No. 3 at 34-39 (Claiborne's opening brief on appeal detailing voir dire
examination of two potential trial jurors who admitted to being influenced by press accounts of first trial).
104 Nev. 115, 176 (1988) State Bar of Nevada v. Claiborne
verdict of guilt rendered by a trial jury from a community exposed to extensive media
coverage of these false accusations. At the very least, where respondent's credibility and his
wrongful intent were crucial factors in the jury's deliberations, the impact of Conforte's
accusations cannot be ignored.
Lastly, and significantly, we again observed that by obtaining the release of Claiborne's tax
returns for the purpose of investigating Conforte's bribery allegations, the prosecution
arguably succeeded in bypassing what appears to be customary steps and routine procedures
normally accorded taxpayers in any tax investigation. Specifically, respondent has contended:
At any one of these steps, when some mistake or omission has been made by a
taxpayer, he may correct the matter in conference or other proceedings. The customary
steps include: (a) audit; (b) Intelligence Division investigation; (c) conference between
taxpayer and Intelligence Division Supervisor; (d) forwarding the case to IRS Regional
Counsel who will notify taxpayer he may ask for a conference, which if requested will
not be denied; (e) transfer from IRS Regional Counsel to Justice Department; (f)
pre-indictment conference. In the instant case, only the last step was taken, and that
only shortly before indictment.
184

In this regard, evidence was presented at this court's hearing of November 24, 1987,
indicating that respondent's tax returns for the years 1979 and 1980 reflected tax preparer
errors which normally would not have been the basis of any prosecution.
185
In light of this
evidence, we are of the opinion that Conforte's allegations unquestionably and materially
impacted upon respondent's indictment, his trial and his conviction. More importantly,
however, for our purposes, these circumstances cast a substantial shadow upon the fairness
and impartiality of the grand jury deliberations that ultimately led to respondent's indictment
and conviction. Accordingly, we are constrained to view with measured depreciation the
continuing vitality of respondent's conviction as a reliable precursor to further discipline.
2. EVIDENCE OF RESPONDENT'S WILLFUL
AND KNOWING CONDUCT
As noted, respondent was convicted of willfully filing a false income tax return for the
years 1979 and 1980 in violation of 26 U.S.C. 7206(1) (1967), which provides in pertinent
part: Any person who . . .[w]illfully makes and subscribes any return, statement, or other
document, which contains or is verified by a written declaration that it is made under the
penalties of perjury, and which he does not believe to be true and correct as to every
material matter . . . shall be guilty of a felony. . . .
____________________

184
Rec. Pt. IV, Vol. I, Pleading No. 3 at 15-16.

185
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987
(testimony of R. Paul Sorenson at 59-64).
104 Nev. 115, 177 (1988) State Bar of Nevada v. Claiborne
Any person who . . .[w]illfully makes and subscribes any return, statement, or other
document, which contains or is verified by a written declaration that it is made under
the penalties of perjury, and which he does not believe to be true and correct as to every
material matter . . . shall be guilty of a felony. . . .
Proof of a violation of this statute requires more than a showing of careless disregard for
the truth but rather, a voluntary, intentional violation of a known, legal duty. See United
States v. Pomponio, 429 U.S. 10, 12 (1976). Respondent contended at his trial and during the
impeachment proceedings that although he may have been negligent and careless, he did not
willfully and purposefully submit false tax returns. See Senate hearings, supra note 15, Pt. 1
at 1149; United States v. Claiborne, 765 F.2d at 797. Defense counsel argued in this regard
that respondent fully and accurately reported his income in 1979 and 1980 to his accountants,
and that he relied in good faith on the expertise of his accountants when he signed his returns.
Such good faith reliance on a qualified accountant coupled with full disclosure of taxable
income is a valid defense to a charge of filing a false return. . . . See United States v.
Whyte, 699 F.2d 375, 379 (7th Cir. 1983).
a. The 1979 Return
Joseph Wright was the accountant who prepared respondent's 1979 return. Wright had
previously prepared respondent's tax returns over a period of approximately thirty years.
186
A
significant issue regarding the question of respondent's full disclosure of income to Wright
centers around a copy of a handwritten letter which respondent contended he wrote and sent
to Wright on April 11, 1980.
187
The letter stated in pertinent part:
Enclosed check in the amount of $8,000 and W-2 form from U.S. Courts as
requested. Fees received during 1979 for practice before I became a judge are
$41,073.93. I also sold my airplane in April. Received $11,000. I paid $11,000 for it, so
there is no profit or loss.
The amount of legal fees, $41.073.93, plus the statement of earnings contained in Judge
Claiborne's W-2 form constituted the full and correct amount of income he received during
1979.
188
The $S,000 check, to which the letter refers, was to accompany an application
for an extension which Wright was preparing.1S9
____________________

186
Rec. Pt. III, Vol. I at 118.

187
Rec. Pt. III, Vol. II at 293; and see Senate Hearings, supra note 15, Pt. 4 at 2185.

188
Senate Hearings, supra note 15, Pt. 1 at 124.
104 Nev. 115, 178 (1988) State Bar of Nevada v. Claiborne
$8,000 check, to which the letter refers, was to accompany an application for an extension
which Wright was preparing.
189

Judge Claiborne testified that he instructed his secretary, Judy Ahlstrom, to deliver the
W-2 form, the $8,000 check dated April 11, 1980, and the letter to Mr. Wright's office on the
morning of April 11, 1980.
190
Ahlstrom consistently testified that she did in fact deliver
these documents to Wright's office on that date and personally handed them to a secretary.
191
Ken Swanson, an employee of Wright's accounting firm, further corroborated this story at the
Senate hearings by testifying that, at or near the time tax returns were due in either 1979 or
1980, he witnessed a woman who was identified to him as Judge Claiborne's secretary deliver
something to Wright's office.
192

Both Wright and Wright's wife, however, testified that they could not recall having
received the April 11, 1980 letter.
193
Further, they maintained that the first time they could
recall having seen this letter was in the fall of 1983 when respondent's counsel, Oscar
Goodman, showed them a copy of it.
194
Mr. Wright also testified that he had no recollection
of ever losing or mislaying any tax documents concerning Judge Claiborne.
195

Thus, a crucial issue before the jury involved the question of whether Wright actually
received the letter of April 11, 1980. If the jury believed that respondent's secretary delivered
the letter, then it necessarily followed that respondent had fully disclosed his income to his
accountant. On the other hand, if the jury found Wright's story to be credible, then
respondent's defense of full disclosure was severely jeopardized.
In reaching its verdict, the jury was not apprised of two important pieces of evidence
reflecting on the credibility of the witnesses concerning the delivery of the letter of April 11,
1980. First, the Wrights' story was contradicted, and Ms. Ahlstrom's story was corroborated at
the Senate hearings by an affidavit submitted by Ellen Arthur, an employee of Wright's
accounting firm during the period in question. Ms. Arthur did not testify at the second trial;
however, in the Senate impeachment hearings she submitted her affidavit stating that on or
about April 11, 1980, she received a telephone call from Judge Claiborne's secretary, and
that the secretary indicated that she would hand-deliver some "tax materials, including
[respondent's] W2 and income information for the tax year 1979.
____________________

189
Rec. Pt. III, Vol. II at 276.

190
Rec. Pt. III, Vol. IV at 869.

191
Rec. Pt. III, Vol, III at 618-21; Senate Hearings, supra note 15, Pt. 1 at 677.

192
Senate hearings, supra note 15, Pt. 1 at 667-68.

193
Rec. Pt. III, Vol. II at 276, 351-52.

194
Id.

195
Rec. Pt. III, Vol. VI at 1178.
104 Nev. 115, 179 (1988) State Bar of Nevada v. Claiborne
secretary, and that the secretary indicated that she would hand-deliver some tax materials,
including [respondent's] W2 and income information for the tax year 1979.
196
Additionally,
Ms. Arthur's affidavit confirms that Ahlstrom did in fact deliver an envelope and that Arthur
placed it on Mr. Wright's desk with a note instructing Wright to look on his desk so that he
would not miss seeing the envelope.
197
Arthur further attested to the fact that [t]he loss or
misplacing of materials was not an unusual occurrence in Mr. Wright's office.
198
Notably,
Arthur explained that although she did attempt to contact attorney Goodman during the
second trial to divulge this information, she did not pursue the matter in part because she
was fearful of repercussions against her by the IRS or the FBI.
199
Finally, Arthur's affidavit
indicates that two or three days after Ahlstrom delivered the envelope to Wright's office,
Mrs. Wright came into Affiant's office clearly tense and somewhat agitated and she asked
Affiant if she had seen the information from Mr. Claiborne's letter as it could not been [sic]
found or had been misplaced.
200
Thus, Arthur's testimony at the second trial would have
substantially corroborated Ms. Ahlstrom's testimony and, consequently, would have
significantly supported respondent's defense that he had fully disclosed his income to Wright
in the letter of April 11, 1980.
Second, respondent has argued that his defense was unfairly deprived of exculpatory
information in the possession of the prosecution that would have allowed for impeachment of
Wright's trial testimony. Specifically, Judge Claiborne contended in his appeal from his
conviction that the trial court had committed reversible error by refusing to disclose to the
defense certain summaries of statements made by Mr. Wright to FBI agents during the
pretrial investigation. In these pretrial interviews with government agents, Wright revealed
that tax documents and records of a substantial number of his clients had been misplaced
or "thrown away" by Wright's office on at least one prior occasion.
____________________

196
Senate Hearings, supra note 15, Pt. 4 at 2077-82.

197
Id. at 2080.

198
Id. at 2081.

199
Id. at 2078.

200
Id. at 2080. We note that Ahlstrom testified that when she delivered the letter, she handed it to a secretary
who she later concluded must have been Mrs. Wright. See Senate Hearings, supra note 15, Pt. 1 at 677. At the
Senate hearings, Annette Quintana submitted an affidavit asserting that she was familiar with the appearance of
both Mrs. Wright and Ellen Arthur. Quintana averred that, in her opinion, it would not be unusual for a person
who did not know either Mrs. Wright or Mrs. Arthur to take one for the other after a brief encounter. See
Senate Hearings, supra note 15, Pt. 4 at 2076. Under these circumstances, and in light of the fact that Mrs.
Wright denied having ever received the April 11th letter, it is perhaps understandable that the defense
investigation did not reveal Arthur's testimony and evidence prior to trial.
104 Nev. 115, 180 (1988) State Bar of Nevada v. Claiborne
records of a substantial number of his clients had been misplaced or thrown away by
Wright's office on at least one prior occasion. See United States v. Claiborne, 781 F.2d 1325,
1326 (9th Cir. 1985) (Ferguson, J., dissenting); United States v. Claiborne, 765 F.2d 784,
800-01 (9th Cir. 1985), cert. denied, 475 U.S. 1120 (1986).
Prior to the trial, the defense specifically requested discovery of all statements, known as
Brady material, in the possession of the prosecution that would tend to impeach the
credibility of any government witness, and for the production of Jencks Act material in
advance of trial.
201
During the two trials, Judge Hoffman had conducted in camera reviews
of potential Jencks Act or Brady material in order to ascertain whether the material contained
information to which the defense was entitled. After the jury returned its verdict in the second
trial, however, Judge Hoffman discovered that he had a packet of FBI summaries and
analogous documents prepared by IRS investigators which he had failed to examine for such
information. This unexamined material included summaries of Wright's statements to FBI
and IRS investigators.
202
See United States v. Claiborne, 781 F.2d 1325, 1326 (9th Cir.
1985) (Ferguson, J., dissenting).
On appeal, the special appellate panel concluded that the FBI summaries of Wright's
statements were not Jencks Act materials and that, therefore, the defense was not entitled to
their disclosure under 18 U.S.C. 3500 (1985). See United States v. Claiborne, 765 F.2d at
801-02. Further, the appellate panel concluded that although some of the undisclosed
information was Brady impeachment evidence, the failure to disclose the Brady material was
not prejudicial to the defense and accordingly did not warrant reversal of respondent's
conviction. Id. at 802-03; see also United States v. Claiborne, 781 F.2d at 1326 (Ferguson, J.,
dissenting).
The appellate panel's analysis in these respects was subsequently severely criticized.
Specifically, in his dissent from the order of the Ninth Circuit denying Judge Claiborne's
petition for a rehearing of the appeal, Judge Ferguson explained: The panel's Brady analysis
ignored United States v. Bagley, .. U.S. .., 105 S.Ct.
____________________

201
Due process requires the prosecution to disclose materially exculpatory information in its possession to
the defense upon a proper request. See United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs,
427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). Additionally, the Jencks Act, 18 U.S.C. 3500
(1985), provides for the mandatory disclosure of certain pretrial statements made by a trial witness in pretrial
interviews or during the witness's grand jury testimony. See Campbell v. United States, 373 U.S. 487 (1963).

202
Rec. Pt. IV, Vol. I, Pleading No. 3 at 42.
104 Nev. 115, 181 (1988) State Bar of Nevada v. Claiborne
The panel's Brady analysis ignored United States v. Bagley, U.S. , 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985), announced six days before Claiborne. Under Bagley,
The evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Id. at 3384. The panel should have decided whether suppression of the Wright
interview material undermined confidence in the outcome of the trial. Instead, the
panel employed a two part test: whether the evidence would have created a reasonable
doubt or whether it might have affected the outcome of the trial. Claiborne, 765
F.2d at 802-03.
Ample evidence from the record supports the conclusion that suppression of the
material undermines confidence in the trial outcome. Wright was a key witness in the
government's case. Evidence that a significant number of his clients' files had been
discarded, directly contradicting his earlier testimony, would certainly undermine his
credibility sufficiently for the jury to conclude that the defendant had testified
truthfully. Thus, Claiborne's conviction should have been reversed because the
government withheld Brady impeachment evidence of one of its key witnesses.
See United States v. Claiborne, 781 F.2d at 1326 (1985) (emphasis added). Judge Ferguson
also concluded that the appellate panel's Jencks Act analysis was incorrect because it not only
conflicted with Supreme Court precedent, but restricted a criminal defendant's access to
witness statements transcribed contemporaneously with the FBI interview and taken down in
a substantially verbatim fashion. Id.; see also Campbell v. United States, 373 U.S. 487, 492
n.6 (1963) (it is not necessary for Jencks Act statements to be signed or written by the witness
nor are they required to be substantially verbatim recordings of a prior statement). Further,
Judge Ferguson criticized the appellate panel for failing to review the material at issue:
The fundamental error the panel committed was its failure to conduct an independent
examination of the materials on which the trial court based its rulings. I fail to see how
the panel, without looking at that material, could have fairly decided whether those
rulings were erroneous. A reviewing court has an obligation to examine Brady and
Jencks Act material to ensure that the district court's rulings were correct.
104 Nev. 115, 182 (1988) State Bar of Nevada v. Claiborne
rect. See Campbell, 373 U.S. at 493, 83 S.Ct. at 1360. After the district court judge
opened the in camera material at the posttrial hearing, he resealed the withheld
documents. The documents have not been unsealed or read by anyone since the district
court's posttrial hearing.
See United States v. Claiborne, 781 F.2d at 1327. Under the fragile circumstances of this
case, we are in accord with Judge Ferguson's analysis and his conclusion that the failure to
disclose the Wright summaries to the defense undermines confidence in the trial outcome.
Moreover, as noted, the affidavit of Ms. Arthur corroborating Judy Ahlstrom's testimony adds
substantial weight to the other evidence presented at the second trial supporting respondent's
contention that he fully disclosed his income to his accountant. This has special significance
in light of the fact that three persons, including respondent, his former secretary and one of
Wright's former employees, testified affirmatively as to Claiborne's provision of his income
information to his accountant, whereas Wright and his wife were only able to state they did
not recall seeing the disclosure statement supplied by Claiborne.
The additional evidence presented warrants some discussion. For example, the 1979
application for an extension of time to file respondent's return was signed by Wright and
dated April 11, 1980.
203
The application indicates a balance due of $8,000, the precise
amount of respondent's check also dated April 11, 1980, that Ms. Ahlstrom claimed she
delivered to Wright's office along with the letter of April 11, 1980.
204

Moreover, respondent testified that later, on the afternoon of April 11, 1980, Wright called
him and asked him to bring by another check in the amount of $2,500 to accompany a
voucher of estimated declaration of tax due for 1980. Respondent stated that he did in fact
take a $2,500 check to Wright later that day and signed the 1980 estimate at that time.
205
The
check number on the $8,000 check is 0302, and the check number on the $2,500 check (also
dated April 11, 1980) is 0303.
206
Respondent also testified that he saw the April 11, 1980,
letter on Wright's desk at the time he delivered the second check.
207

Respondent further testified that in May of 1980, he called Wright to inform him that he
was being assigned to Los Angeles to try a case and would be there for a considerable
period of time.
____________________

203
Senate Hearings, supra note 15, Pt. 4 at 2115.

204
Id. at 2115, 2222; Rec. Pt. III, Vol. III at 620.

205
Senate Hearings, supra note 15, Pt. 4 at 2146-47; Rec. Pt. III, Vol. IV at 870-71.

206
Senate Hearings, supra note 15, Pt. 4 at 2147.

207
Rec. Pt. III, Vol. IV at 871; Senate Hearings, supra note 15, Pt. 1 at 994.
104 Nev. 115, 183 (1988) State Bar of Nevada v. Claiborne
to try a case and would be there for a considerable period of time. Accordingly, respondent
contends that he and Wright agreed that respondent should sign a blank tax return in order to
avoid having to file another extension.
208
Respondent stated that Wright telephonically
requested additional information regarding his 1979 income, including the precise
information that had been provided in the April 11, 1980, letter.
209
According to respondent,
when he told Wright that he had already provided those figures, Wright paused for a moment,
and then announced that he did have the figures, but misstated Claiborne's income from his
former law practice to be $22,332.87, instead of $41,073.93. Respondent contends that he
(respondent) wrote this misstated figure on a worksheet along with the additional tax data
requested and later supplied this worksheet to Wright.
210
In sum, it was respondent's
testimony that this miscommunication resulted in Wright's utilization of an incorrect
$22,332.87 figure on the 1979 tax return that respondent signed in blank in Wright's office
before it was completed.
211

Unquestionably, there was a substantial body of evidence compiled in both the trial and
impeachment proceedings establishing that the letter of April 11, 1980, fully disclosing
respondent's income for the year 1979, was delivered to Wright's office. The jury, however,
did not have Ms. Arthur's evidence before it when it reached its verdict. Further, materially
exculpatory evidence was withheld from the defense that tended to impeach Wright's
credibility on the issue of whether respondent fully disclosed his income. As Judge Ferguson
observed, this fact alone is sufficient to undermine confidence in the jury verdict regarding
respondent's 1979 return.
b. The 1980 Return
In 1981, after thirty years with Joseph Wright, Judge Claiborne elected to employ the
services of Jerry Watson to prepare his 1980 income tax return. Watson was the owner of a
financial planning business known as Creative Tax Planning. Respondent explained that after
he became a federal judge, he perceived his tax situation to be considerably less complicated
than it was when he was in private practice. Additionally, respondent suggested that his
relationship with Wright had turned somewhat cold, and that he felt he was imposing on
Wright.
212
Judge Claiborne was introduced to Watson by the judge's ex-wife, and the
judge was immediately impressed by Watson's air of professionalism.
____________________

208
Rec. Pt. III, Vol. IV at 873-76.

209
Id. at 873-76.

210
Id.

211
Id. at 876.

212
Senate Hearings, supra note 15, Pt. 1 at 381, 938-39; Rec. Pt. III, Vol. V at 969.
104 Nev. 115, 184 (1988) State Bar of Nevada v. Claiborne
Judge Claiborne was introduced to Watson by the judge's ex-wife, and the judge was
immediately impressed by Watson's air of professionalism. Judge Claiborne also recognized
Watson as a fellow member of his church.
213
However, Watson apparently held himself out
to be more professional and knowledgeable on tax matters than reality allowed. One of
Watson's former employees, Charlotte Travaglia, testified before the Senate Impeachment
Committee and characterized Watson's demeanor towards the public as exalted. Travaglia
further indicated that he professed to know what he was doing in all areas.
214
Respondent
testified that Watson appeared to be a topright man and that he talked like he knew what
he was doing.
215
Watson testified, however, that of all the things I am, the thing I'm not is
an accountant. And I own a tax preparation company and an accounting business, but that
doesn't mean that I am a qualified accountant, nor have I held myself out to be.
216
Nonetheless, it appears that one could easily adopt a good faith belief in Watson's
qualifications, competency and professionalism as a tax preparer. Certainly, one could
assume from Watson's letterhead, which listed approximately thirty different types of
financial planning and consulting services, that Watson's firm offered expert and professional
tax and investment advice.
217

Watson's testimony before the Senate panel, however, left a somewhat different
impression. For example, at the conclusions of Watson's final appearance before the
committee, Senator Rudman commented that Watson's testimony should be forwarded to the
Justice Department for appropriate action. Senator Rudman further stated:
Anyone sitting through this trial has seen an active effort to defraud the taxpayers of
this country, certainly by this alleged accountant.
And the third comment I want to makeand I will do this myselfI intend to write
to the Internal Revenue Office in Nevada, and suggest that they start forthwith and audit
on any return that Mr. Watson has prepared, because I frankly think that we have seen
here a pattern of the most egregious fraud on taxpayers, aside from whether Judge
Claiborne has any knowledge of them. A separate question.
____________________

213
Senate Hearings, supra note 15, Pt. 1 at 939; Rec. Pt. III, Vol. IV at 883-86.

214
Senate Hearings, supra note 15, Pt. 1 at 783.

215
Rec. Pt. III, Vol. V at 970.

216
Senate Hearings, supra note 15, Pt. 1 at 720.

217
Senate Hearings, supra note 15, Pt. 4 at 2149.
104 Nev. 115, 185 (1988) State Bar of Nevada v. Claiborne
This witness that has been before this panel today, and yesterday, in my many years
of trying cases, has to be the most incredible witness that I have ever seen, particularly
before a hearing conducted before the United States Senate.
218

As noted, in 1981, however, after meeting Watson and being impressed with his
professional demeanor, respondent engaged Watson to prepare his 1980 return.
219
Pursuant
to a subsequent conversation, respondent supplied Watson with a handwritten list of his tax
information.
220
This list specifically indicated respondent's wages in 1980 as a federal judge
and $88,500 in income during that year from private practice before appointment [to the
judiciary] in 1978. . . .
221
As such, this handwritten list fully disclosed respondent's income
for the year 1980. See, e.g., United States v. Claiborne, 765 F.2d at 796.
Charlotte Travaglia was employed by Watson's firm at the time Claiborne's 1980 return
was being prepared.
222
She did not testify at either the first or second trials, but she did
appear before the Senate panel and testified in some detail about the preliminary work she did
on respondent's 1980 return.
223
In particular, Travaglia testified that Watson, at one point,
assigned her the task of preparing a preliminary worksheet regarding respondent's 19S0
return.224 Watson handed her a stack of tax information which contained the
aforementioned handwritten list compiled by respondent.225 This list has been referred
to as the "yellow sheet" because it was written on yellow legal paper.
____________________

218
Senate Hearings, supra note 15, Pt. 1 at 1104.

219
Rec. Pt. III, Vol. IV at 886.

220
Senate Hearings, supra note 15, Pt. 4 at 2223; Rec. Pt. III, Vol. IV at 888.

221
Id.

222
Senate Hearings, supra note 15, Pt. 1 at 782.

223
Id. at 781-826. In this regard, we observe that Travaglia was originally subpoenaed by the prosecution to
testify at respondent's first trial. She was under the impression, as a result of that subpoena, that she should not
talk to the defense and in fact refused to discuss her involvement in the matter with defense counsel prior to the
first trial. See Senate Hearings, supra note 15, Pt. 1 at 789. In pretrial interviews with an FBI agent, after she had
testified before the grand jury, Travaglia identified a document known as the yellow sheet upon which
respondent had fully disclosed his income to Watson. She further indicated in that interview that she utilized the
yellow sheet in the preliminary work she did on respondent's return. A copy of the FBI report of that interview is
attached as Exhibit 1 to this opinion. See Senate Hearings, supra note 15, Pt. 3 at 2047 (FBI Report of
Interview); see also Affidavit of Charlotte Travaglia, Senate Hearings, supra note 15, pt. 3 at 1992. Respondent
has alleged that the prosecution withheld this evidence from the indicting grand jury, and that the FBI agent's
memorandum of interview was wrongfully withheld from the defense during the pretrial discovery and at trial.
See Rec. Pt. I, Vol. IX, Pleading No. 105 at 7, 13 (amended motion to vacate judgment of conviction).
Apparently, Travaglia, although available to testify at the first trial, was excused as a witness by the defense and
the prosecution prior to trial. Respondent's counsel represented, in the opening brief on appeal to the Ninth
Circuit, that Travaglia was ill with cancer during the second trial and did not testify. See Rec. Pt. IV, Vol. I,
Pleading No. 3 at 31. We observe that disclosure to respondent's counsel of Travaglia's statements memorialized
in the FBI agent's memorandum of interview may well have
104 Nev. 115, 186 (1988) State Bar of Nevada v. Claiborne
Travaglia testified that Watson, at one point, assigned her the task of preparing a preliminary
worksheet regarding respondent's 1980 return.
224
Watson handed her a stack of tax
information which contained the aforementioned handwritten list compiled by respondent.
225
This list has been referred to as the yellow sheet because it was written on yellow legal
paper. A copy of the yellow sheet is attached to this opinion as Exhibit 2. Travaglia further
stated that her own handwriting appears on the yellow sheet, and that she placed an asterisk
beside the $88,500 figure that Judge Claiborne had indicated was his income received from
fees due from his private practice prior to his appointment to the bench.
226
Travaglia testified
that certain items appearing on page one of respondent's list were her notations in her
handwriting.
227

Travaglia's testimony, as well as Watson's testimony, reveals that Watson had contrived a
plan by which he hoped to reduce Judge Claiborne's tax liability by somehow writing off
losses that the judge suffered from quitting his law practice and assuming the bench. Watson
testified, for example, that respondent's fee income inappropriately appeared on Schedule D
of the return as a capital gain rather than on Schedule C as income.
228
According to Watson,
Travaglia apparently added the $88,500 legal fee income with some unidentified amounts that
Judge Claiborne received from a sale of books from his law library to establish a capital gain
of $150,000.
229
This figure then appeared on Schedule D of the return as a capital gain
which partially offset the $250,000 in capital losses.
230
How Watson arrived at the $250,000
amount as a capital loss from the loss of respondent's private practice remains somewhat of
a mystery.
231
Although Watson maintained that he and Travaglia came up with the $250,000
figure, Travaglia denied any complicity in this plan.
232
At any rate, Schedule D reflected a
total capital loss of $100,000.233 A copy of respondent's Schedule D form is attached to
this opinion as Exhibit 3.
____________________
insured that the defense would have attempted to present her exculpatory testimony to the trial jury. Like the FBI
memoranda of Mr. Wright's statements, defense counsel's unawareness of Travaglia's exculpatory statements to
the FBI prior to trial may have significantly affected the outcome of the trial.

224
Senate Hearings, supra note 15, Pt. 1 at 783.

225
Id. at 783-84.

226
Id. at 807; and see Senate Hearings, supra note 15, Pt. 4 at 2223 (copy of yellow sheet in question).

227
Id. at 807.

228
Senate Hearings, supra note 15, Pt. 1 at 720; Pt. 4 at 2137.

229
Senate Hearings, supra note 15, Pt. 1 at 722-24, 1165.

230
Senate Hearings, supra note 15, Pt. 4 at 2137.

231
Senate Hearings, supra note 15, Pt. 1 at 1045-50 (detailing Watson's enigmatic explanation).

232
Id. at 805.
104 Nev. 115, 187 (1988) State Bar of Nevada v. Claiborne
D reflected a total capital loss of $100,000.
233
A copy of respondent's Schedule D form is
attached to this opinion as Exhibit 3.
It is clear that this procedure was improper mainly because there was never a sale of the
law practice, and the legal fees were income not capital gains. The fees therefore belonged on
Schedule C and not on Schedule D. Respondent testified, however, that Watson had not fully
explained his concept of treating the legal fee income as capital gains on Schedule D until
well after respondent had signed the return.
234
Travaglia also testified that the return that
respondent signed was essentially the preliminary worksheet she had prepared for Watson,
and that she had never intended it to be a final return.
235
Additionally, she stated that she
indicated on several occasions to Watson that there were problems with the return, that the
preliminary work was incorrect, and that she needed more information in order to straighten
out some of the things that she felt were wrong on the return.
236
When help from Watson
was not forthcoming, she finally put her preliminary work product on Watson's desk, never
intending it to be a final, completed return.
237

Apparently, this preliminary work product was essentially the return which respondent
signed and which was filed. Judge Claiborne testified that he subsequently was notified by
Watson that the return was ready and he went to Watson's office to sign it. According to
respondent, Watson was not present, but a secretary brought him a number of loose
documents. The signature page had a paper clip on it and he signed it, thumbed briefly
through the documents, asked the secretary to have Watson mail him a copy of the return and
left.
238

Three days later Watson came to Claiborne's office with the bill for his services and the
return. Respondent glanced through it again and questioned Watson about how he had
accomplished a refund. Watson explained, in an authoritative manner, that he had found a
way to establish a loss on respondent's law practice. Respondent told Watson that he wanted
no trouble with the IRS because he had all the trouble with FBI that I can handle right now.
239
Watson, nonetheless, assured him that he could "support" the return.240 Again, after
Watson's appearance before a Portland grand jury, Watson told Judge Claiborne that the
return was correct, and that he had shown the return to two IRS employees, both of
whom said that the return was "right."241
The return, however, cried out for an audit.
____________________

233
Senate Hearings, supra note 15, Pt. 4 at 2137-38.

234
Senate Hearings, supra note 15, Pt. 1 at 1025; Rec. Pt. III, Vol. IV at 897-98.

235
Senate Hearings, supra note 15, Pt. 1 at 786.

236
Id. at 786, 820, 822-23.

237
Id.

238
Id. at 946; Rec. Pt. III, Vol. IV at 893-95.

239
Senate Hearings, supra note 15, Pt. 1 at 946-48.
104 Nev. 115, 188 (1988) State Bar of Nevada v. Claiborne
support the return.
240
Again, after Watson's appearance before a Portland grand jury,
Watson told Judge Claiborne that the return was correct, and that he had shown the return to
two IRS employees, both of whom said that the return was right.
241

The return, however, cried out for an audit. It was written in pencil. Schedule D had an
arrow drawn on it indicating the words type here. A copy of Schedule D is attached to this
opinion as Exhibit 3. Expert testimony established that such a return would ordinarily raise an
audit.
242

In sum, the evidence regarding the 1980 return suggests that Judge Claiborne placed his
good faith confidence in a man who superficially exuded authoritative knowledge and skill in
tax matters. Watson, however, clearly handled respondent's return incompetently. Further,
Travaglia's Senate testimony, which the trial jury did not hear, confirms that respondent
disclosed, on the yellow sheets, all the income received from his former law practice to
Watson for the purpose of preparing the 1980 tax return. He apparently hid nothing from
Watson, but due to Watson's incompetence and his misperceptions of fundamental concepts
of tax accounting, the return incorrectly obscured respondent's income.
Shortly after the United States Senate voted on the articles of impeachment, Senator Orrin
Hatch, a member of the Senate panel charged with the responsibility of gathering evidence on
behalf of the full Senate, addressed the Senate and set forth his analysis of the evidence.
243
Senator Hatch expressed his view that the Senate had a constitutional obligation and duty to
reach [its] own independent conclusion about the facts which gave rise to these charges, and
should not simply defer to the existence of respondent's criminal conviction in discharging its
obligations under the impeachment clause of the constitution.
244
See U.S. Const. art. I, 3.
Further, the Senator stated:
[I]f there remains a reasonable doubt about [Judge Claiborne's] intentions, then the
Senate was obligated to conclude that he should not have been convicted in court and
that he should not have been impeached and that he should not have been convicted by
the Senate. Relying as they did on the criminal conviction, the House Articles of
Impeachment required the Senate to ascertain whether, beyond a reasonable doubt,
Judge Claiborne intentionally filed a false return.245
____________________

240
Id.

241
Id. at 710-11, 952.

242
Id. at 829; Senate Hearings, supra note 15, Pt. 4 at 2137.

243
132 Cong. Rec. S15763-66 (daily ed. Oct. 9, 1986) (statement of Senator Orrin Hatch).

244
Id. at S15763.
104 Nev. 115, 189 (1988) State Bar of Nevada v. Claiborne
required the Senate to ascertain whether, beyond a reasonable doubt, Judge Claiborne
intentionally filed a false return.
245

After reviewing the pertinent provisions of 26 U.S.C. 7206(1), the statute under which
respondent was convicted in federal court, Senator Hatch further observed:
All of the issues before the Senate today were reducible to one simple question: Did
Judge Harry Claiborne willfully file a false tax return? Both Judge Claiborne and the
House agreed that the 1979 and 1980 tax returns fail to report taxable income. The
issue before the Nevada District Court and the Senate today was whether that
under-reporting was willful.
The Supreme Court, in United States v. Pomponio, 429 U.S. 10 (1976) stated that
the term willfully in the tax code requires more than a showing of carelessness or
negligence; it requires proof of an intentional violation of a known legal duty. In United
States v. Bishop, 412 U.S. 346 (1973), the Supreme Court stated:
Degrees of negligence give rise in the tax system to civil penalties . . . The
Court's consistent interpretation of the word willfully to require an element of
mens rea implements the pervasive intent of Congress to construct penalties that
separate the purposeful tax violator from the wellmeaning, . . . mass of taxpayers. Id.
at 360-361.
The import of these cases is that willfulness is the intentional, deliberate, voluntary,
or witting violation of a known legal obligation.
Certainly Judge Claiborne knew the duty to file an accurate and complete tax return.
It is far from clear from the evidence presented either in trial or during the
impeachment proceedings that Judge Claiborne deliberately or intentionally or wittingly
or purposefully tried to escape the obligation of every taxpayer. To the contrary, there is
much to indicate that Judge Claiborne's deliberate actions were an attempt to file an
accurate and complete return. According to the judge and much corroborating evidence,
miscommunications with accountants and mistakes by those accountants caused errors
in the judge's tax returns, of which he was [un]aware until the criminal investigation
was already underway. If the judge is correct, the voluminous evidence at most shows
that he was negligent in failing to detect his accountant's errors. This, however, would
not be willfulness. It would not be deliberate and witting tax evasion.
____________________

245
Id.
104 Nev. 115, 190 (1988) State Bar of Nevada v. Claiborne
deliberate and witting tax evasion. It would be simple negligence, which as the
Supreme Court's Bishop case stated, would be corrected by a civil proceeding, not a
criminal action.
246

Senator Hatch further observed that no direct evidence of respondent's willful violation of
the provisions of the tax code existed in this case. Therefore, in order to establish Judge
Claiborne's willful intent it was necessary to infer such an intent from circumstantial
evidence. Senator Hatch noted that the factors appropriately considered in this regard
included (1) evidence of a consistent pattern of underreporting, (2) the magnitude of the error
in the return, and (3) factors such as sudden changes in accountants.
247
After carefully
reviewing the evidence set forth above and concluding that it clearly established that Judge
Claiborne fully disclosed his income to his accountants, Senator Hatch analyzed the first of
these factors as follows:
On the point of whether this alleged underreporting was a consistent activity, the
House made much of the fact that these errors occurred in 2 successive years. An
examination of the evidence, however, offers a plausible explanation. After all, Judge
Claiborne had only recently taken his position on the bench. He was still adjusting to
new financial arrangements, new work schedules, new responsibilities, new demands
on his time and talents. It was time of turmoil and change in his life. He was selling his
residence and purchasing another. He was turning over his law firm to his former
partners and liquidating his assets in that business. These drastic changes were also an
important reason that he elected to switch accountants. With changes of this magnitude
underway in his life, it is not wholly unexpected that miscommunications,
misperceptions, and mistakes might occur in these 2 years.
248

The Senator concluded in this regard that [i]n sum, Judge Claiborne did not underreport his
incomeconsistently or otherwise.
249

In regard to the circumstantial evidence relating to the magnitude of the error, Senator
Hatch observed:
The next circumstantial point made by the House concerns the magnitude of the
error. The $18,700 shortfall in his 1979 return was not due to any willful act on Judge
Claiborne's part.
____________________

246
Id.

247
Id. at S15764.

248
Id.

249
Id.
104 Nev. 115, 191 (1988) State Bar of Nevada v. Claiborne
return was not due to any willful act on Judge Claiborne's part. He thought the income
he disclosed on April 11 was part of the return. The judge did not actually review the
1979 tax return before it was filed. On May 2, 1980, he was leaving town to take an
assigned case in another jurisdiction. Fearing that he might not return before the filing
deadline, the judge went to Wright's office and signed a return in blank. He signed the
return in blank because he was going out of town on assignment. He certainly expected
that it would contain income which he had reported to his accountant in an earlier
hand-written and hand-delivered letter.
Wright's testimony on this point is that he had changed his practice of allowing tax
returns to be signed in blank. It is nonetheless uncontroverted that early in his career
Wright had permitted tax returns to be signed in blank. Judge Claiborne had been
associated with Wright for 30 years. The recent changes in practice may not have been
binding on a longstanding customer like Judge Claiborne who testifies persuasively that
he signed the form in blank sometime on May 2.
In 1980, Judge Claiborne reported to Watson the $88,500 in income on the
now-famous yellow sheets. Watson told the judge that the income was reflected in
the schedule D form concerning capital gains because it was part of the sale of the law
business. Watson pointed out that this method had been checked by the CPA who did
the actual work on the judge's tax return and further checked with the IRS.
The 1980 tax return was a mess. It contained numerous blatant errors. It did not even
credit Judge Claiborne with the $22,000 he had already paid in estimated taxes for that
same tax year. It was filled out in pencil and had arrows drawn from one part of the
return to others. If the judge had intended to defraud, he certainly would have been
more cunning. If Judge Claiborne had intended to defraud, he certainly would not have
filed a return full of red flags pointing to its likely deficiencies.
250

(Emphasis added.)
As for the third aspect of circumstantial evidence of willfulness, Senator Hatch remarked
that respondent had several good reasons to change accountants after thirty years:
In the first place, he no longer was managing a law business. He had no need of the
wide range of services provided by Wright. Moreover, Wright had treated the judge
coldly in some of their recent conversations. This may well have been because Mr.
____________________

250
Id. at S15764-65.
104 Nev. 115, 192 (1988) State Bar of Nevada v. Claiborne
because Mr. Wright had moved on to a different clientele after 30 years in the business.
He may have wished he was receiving more compensation for his services. The reasons
that Judge Claiborne and his accountant began drifting apart are not fully stated. It is
clear, however, that the judge perceived that his accountant was no longer as interested
in his account as he had been in the past.
Mr. Watson, on the other hand, came highly recommended by the judge's wife and
had impressed the judge on the one occasion he had to observe his work. Watson was
very interested in Judge Claiborne's account. He forthrightly solicited Judge Claiborne's
business with the promise that he might be able to save him money on taxes in a
legitimate manner. Judge Claiborne was selling his large home and Watson specifically
mentioned in his letter a plan to treat that transaction favorably. In light of the distance
between the judge and his former accountant, this offer must have been very attractive.
251

Additionally, Senator Hatch noted that, contrary to the House brief, Judge Claiborne was no
tax expert. Not only did respondent refer his personal tax matters to specialists such as
Wright, during his years in private practice he also repeatedly referred his clients' tax matters
to other attorneys.
252
In this regard, the Senator concluded that Judge Claiborne had
justifiably relied in good faith on both Wright and Watson:
As a matter of law, reliance on a tax accountant is justified if the judge fully
disclosed all pertinent facts and if his reliance was in good faith. In this case, the judge
had fully disclosed his income in both 1979 and 1980. He had reason to rely in good
faith on Wright because Wright had done his taxes for 30 years without a hitch. He had
a reason to rely in good faith on Watson because Watson came highly recommended by
his wife and seemed to handle business competently.
253

Finally, in Senator Hatch's view, respondent did not turn a blind eye to the problems of his
returns. Senator Hatch observed that, in 1979, Judge Claiborne signed the return in blank,
fully relying on Wright to report his income correctly as detailed in the letter of April 11,
1980, because he had been assigned to preside over a case outside of Nevada. As for 1980,
Senator Hatch found it "simply inconceivable that Judge Claiborne would attempt to
escape tax liability" when he knew the FBI was investigating him and scrutinizing his
affairs. "Not even a 4-year-old attempts to raid the cookie jar when he knows he is being
watched.
____________________

251
Id. at S15765.

252
Id.

253
Id.
104 Nev. 115, 193 (1988) State Bar of Nevada v. Claiborne
simply inconceivable that Judge Claiborne would attempt to escape tax liability when he
knew the FBI was investigating him and scrutinizing his affairs. Not even a 4-year-old
attempts to raid the cookie jar when he knows he is being watched.
254
Senator Hatch further
found the sloppiness of this return to be significant:
It is even more unlikely that in this time of tension Judge Claiborne would file a
fraudulent return that begs for examination and audit. This is the equivalent of the
judge shouting at the top of his lungs that he intends to raid the cookie jar and then
proceeding to attempt the feat under his parents' noses.
255

Neither could Senator Hatch reconcile Judge Claiborne's full disclosure of his 1980 income
on an ethics report, with a willful failure to report income to the IRS for that year. A copy
of respondent's financial disclosure report for 1980 is attached to this opinion as Exhibit 4.
The Senator queried: Why would he deliberately evade taxes and then tell the Government
the facts that disclose his fraud in another filing?
256
Answering his own question, Senator
Hatch remarked: If Judge Claiborne was acting with a criminal state of mind, it is
inexplicable that he would lie on one Government filing and confess his guilt on another. The
judge simply did not act willfully.
257

Senator Hatch concluded that there was no evidence that Judge Claiborne willfully filed a
false tax return:
If he had intended to violate the law, he would not have done it so poorly. Neither the
1979 nor the 1980 return shows any evidence of cunning or guile. They contain
mistakes discernible by a grade school observer. The judge relied too heavily on
unreliable accountants. The judge was negligent in failing to check his accountant's
errors. Frankly if one of the Articles of Impeachment had cited the judge's gross
negligence and disregard, I would have voted to impeach. The House Articles,
however, are all based on the criminal conviction. The criminal conviction is only valid
if Judge Claiborne acted willfully. For the reasons I have cited, I could not find
sufficient evidence of willfulness.
258
Senator Hatch's assessment of the evidence of
the willfulness of Judge Claiborne's conduct is persuasive.
____________________

254
Id.

255
Id.

256
Id. at S15766.

257
Id.

258
Id.
104 Nev. 115, 194 (1988) State Bar of Nevada v. Claiborne
Senator Hatch's assessment of the evidence of the willfulness of Judge Claiborne's conduct is
persuasive. As a member of the impeachment committee, Senator Hatch personally heard all
the testimony presented, and had an opportunity to evaluate the demeanor of the various
witnesses. Comparing the judge's testimony, with that of the other witnesses, Senator Hatch
found Judge Claiborne to be a credible witness, believed the judge's explanation of the
circumstances leading to his conviction, and found that the other evidence presented
supported that explanation.
259

I listened very carefully to every aspect of the testimony before the Impeachment
Committee. I compared each witness' statements to the assertions made by other
witnesses. In the long run, I found Judge Claiborne to be a credible witness. I believed
him. Moreover, the evidence in this case supported the judge's explanations of the
circumstances that led to his indictment and conviction. Giving the judge the benefit of
the doubt, as I believe we are obligated to do when his life's work and reputation are at
stake, the evidence did not support a finding of willfulness. The evidence clearly
showed that the judge had been grossly negligent and had carelessly disregarded his
obligations as a taxpayer. He did not, however, conspire or craftily design a plan to
defraud the Government. In the absence of willfulness, beyond a reasonable doubt, he
should not have been convicted, should not have been impeached, and, in my opinion,
should not have been removed from office. This was why I voted not guilty on each of
the Articles of Impeachment.
260

Our review of the record compels respect for Senator Hatch's evaluation of the facts.
Furthermore, his assessment of the credibility of the witnesses is compelling because he had
an opportunity to view their testimony first-hand. More importantly, as Senator Hatch states,
there is a significant lack of evidence showing that respondent willfully sought to falsify his
income tax returns. The evidence weighs more persuasively that respondent acted negligently
concerning his obligations as a taxpayer.
3. THE JUDICIAL AND CONGRESSIONAL PROCEEDINGS
In addition to the specific matters discussed above, the procedural history of Judge
Claiborne's case raises disturbing questions about whether or not he received a full and fair
opportunity to present his defense. As noted, prior to respondent's first trial, Judge Hoffman
denied a series of pretrial motions filed by the defense.
____________________

259
Id.

260
Id.
104 Nev. 115, 195 (1988) State Bar of Nevada v. Claiborne
defense. Respondent immediately appealed those rulings to the Ninth Circuit Court of
Appeals. See United States v. Claiborne, 727 F.2d 842 (9th Cir.), cert. denied, 469 U.S. 829
(1984). As Judge Reinhardt of the Ninth Circuit has explained:
At the time of the pre-trial appeal, the case against Judge Claiborne still included the
charges relating to his alleged acceptance of a bribe intended to influence the results in
an appeal before one of our panels. We as a court agreed, although in a rather informal
manner, to recuse ourselves from hearing Judge Claiborne's pretrial appeal. The Chief
Justice then specially selected a panel of three judges from other circuits to hear it. The
special panel affirmed the pretrial rulings of the specially assigned district judge. 727
F.2d 842, cert. denied, U.S. , 105 S.Ct. 113, 83 L.Ed.2d 56 (1984).
See United States v. Claiborne, 781 F.2d 1327, 1330 (9th Cir. 1986) (Reinhardt, J.,
dissenting).
Upon the entry of the judgment of conviction in the second trial, Judge Claiborne again
appealed to the Ninth Circuit. In explaining the Ninth Circuit's actions respecting that appeal,
Judge Reinhardt stated:
This time we took no action to recuse ourselves. In fact, we did nothing at all. Although
the bribery charges that indirectly involved our court in the proceedings were no longer
a part of the case, we simply failed to consider, formally or informally, the question
whether we now had an obligation to hear the appeal or whether a new special panel
should be appointed. Apparently acting on the assumption that our prior recusal was a
continuing one, the Chief Justice specially selected another panel of three judges from
other circuits to hear the appeal.
Id.
Noting that an overwhelming majority of the judges of the appellate court believed that
they were not required to recuse themselves from voting on a critical aspect of the
proceedings on appeal, Judge Reinhardt went on to explain why in his view the Court of
Appeals had committed a serious error with serious consequences. Id. Judge Reinhardt
wrote:
Specifically, we erred when we failed to consider whether we should hear Judge
Claiborne's appeal from his conviction or whether, instead, the appointment of a second
special panel was required. Because of our error, outside judges were appointed to hear
an appeal that we had an obligation to hear ourselves. Our court system is structured so
that a defendant will normally have his trial and any appeals heard by judges residing
in the circuit in which the charged crime was allegedly committed.
104 Nev. 115, 196 (1988) State Bar of Nevada v. Claiborne
by judges residing in the circuit in which the charged crime was allegedly committed.
Here, we erroneously, albeit inadvertently, deprived Judge Claiborne of this feature of
our laws; en banc consideration of the Judge's case would have been a proper means of
at least partially remedying our mistake.
Rehearings en banc provide a means for ensuring that the law of our circuit is
applied not only consistently but correctly. Here, as a result of our failure to act, judges
from other circuits, not as familiar as we are with the precedents of our court,
considered a case that we had a duty to hear. Judge Claiborne's appeal raises several
issues of importance. In disposing of at least one of those issues, the special outside
panel cited no authority from any appellate court, let alone a decision by the judges of
this court. The special panel also stated that it was not following the result reached in
two of the three district court opinions that it cited. 765 F.2d at 794-95. In my view,
when a substantial question of law not previously decided by the judges of this court is
decided by a panel of outside judges and we subsequently recognize that we have erred
in failing to decide that question ourselves, it is our responsibility to grant en banc
reconsideration.
Id. at 1330-31 (footnotes omitted).
In Judge Reinhardt's view, the fact that Judge Claiborne was, at that time, a United States
District Judge from the Ninth Circuit may have figured in the decision of some of the judges
of the Ninth Circuit to deny Judge Claiborne a rehearing en banc, because to do so might
have raised an appearance of impropriety. In this regard, Judge Reinhardt stated:
The fact that Harry Claiborne is a United States District Judge does not mean that he
is less entitled than any other individual to the full benefit of the orderly procedures of
this court. Those procedures, including en banc consideration, have been established to
ensure that justice is done. Our en banc process is also designed, as I noted earlier, to
ensure that the law of this circuit will be applied uniformly to all defendants. Judge
Claiborne has just as much right to have his case considered en banc as any other
defendant. En banc proceedings are different in one critical respect, however, from all
other proceedings this court conducts: only the judges of our court can hear a case of
ours en banc. There is no procedure in current law for obtaining an out-of-circuit en
banc panel. This is true even when an appeal is heard initially by a specially selected
panel of out-of-circuit judges. Thus, if in fact an appearance of impropriety existed
here, the rule of necessity would apply, and we would be required to disregard that
appearance.
104 Nev. 115, 197 (1988) State Bar of Nevada v. Claiborne
here, the rule of necessity would apply, and we would be required to disregard that
appearance. Accordingly, if a factor in our decision to deny Judge Claiborne en banc
consideration of his case was our concern over an appearance of impropriety, we have,
in my view, seriously misconstrued our duty as judges of this circuit. In doing so, we
have, unfortunately, also denied Judge Claiborne equal justice.
Id. at 1331-32.
Moreover, in Judge Reinhardt's view, an equally significant appearance of impropriety
would have existed regardless of whether Judge Claiborne's appeal was heard by the members
of the Ninth Circuit Court of Appeals, or by a panel of out-of-circuit judges. In Judge
Reinhardt's opinion, the failure of the Ninth Circuit judges to grant an en banc rehearing
allowed the record to rest with the appearance that Judge Claiborne may have been the
object of adverse special treatment and, thus, the victim of injustice. Id. at 1332 (emphasis
in original). Further, Judge Reinhardt concluded:
Judge Claiborne is one of the few criminal defendants in the Ninth Circuit, if not in the
nation, whose case has been handled, both in the District Court and in the Court of
Appeals, exclusively by judges specially and specifically chosen to hear that particular
case. There is, in my opinion, a rather substantial appearance of injustice when a
defendant who claims he is the victim of a vendetta on the part of various branches and
agencies of the Department of Justice is deprived of the opportunity to be judged by
those who would normally preside over his case and instead is tried and convicted
before, and has his appeal heard by, judges all of whom are specially selected for their
assignments.
There is no doubt that every step taken in appointing the specially designated judges
fully complied with all existing statutes and rules. Moreover, there is no suggestion in
this case that there was in fact anything improper about the designation of the judges, or
that any of the judges involved in the selection process acted with anything less than the
utmost integrity. Nevertheless, in a case in which the defendant contends that he is the
object of a prosecutorial vendetta, in which the judges who heard the case were all
specially selected under a process that permits the selector total discretion to choose
whom he wishes, and in which we as a court erred in permitting the specially selected
panel to hear the appeal, I believe that an en banc hearing is requiredif for no other
reason than to ameliorate, to the extent possible, the appearance of injustice. En banc
consideration by the judges of this court, judges who were not specifically selected
to hear Judge Claiborne's appeal, would have gone a considerable way towards
accomplishing that objective.
104 Nev. 115, 198 (1988) State Bar of Nevada v. Claiborne
eration by the judges of this court, judges who were not specifically selected to hear
Judge Claiborne's appeal, would have gone a considerable way towards accomplishing
that objective.
Unfortunately, as events unfolded, only an en banc review by this court or a hearing
by the United States Supreme Court could have afforded Judge Claiborne consideration
of his case by a tribunal that had all the appearances of fairness. All courts that have
previously heard his case are open to the charge that they were specially selected for the
purpose of ensuring the desired governmental objective. In my opinion, the proceedings
thus far afforded Judge Claiborne fall far short of meeting the appearance of justice
standard. Because of our obligation to administer justice in a manner that maintains
confidence in the fairness and objectivity of the judicial system, I believe that it was our
duty and responsibility to hear his case en banc.
Id. at 1332-33 (emphasis added; footnote omitted).
Although it is not our intention to invade the province of the federal courts, we are in
sympathy with the views expressed by Judge Reinhardt. As detailed above, from the very
inception of this case, there has been, at the very least, an appearance that respondent was
unfairly targeted for investigation, unfairly indicted and unfairly tried and convicted. Further,
as Judge Reinhardt indicates, there is also an appearance of injustice relating to the conduct of
the appellate proceedings which suggests that respondent may well have received adverse
special treatment and may well have been denied the full measure of his procedural rights
solely on account of his office and position.
Moreover, it appears that anomalous and arguably unfair procedures were imposed upon
Judge Claiborne during the United States Senate impeachment proceedings. Specifically, for
the first time in history, the Senate utilized an impeachment procedure whereby a
twelve-member special committee was formed to receive evidence on behalf of the full
Senate. See S. Res. 481, 99th Cong., 2d Sess. (1986), Senate Hearings, supra note 15, Pt. 1 at
2-3 (providing for the appointment of a committee to receive and to report evidence with
respect to articles of impeachment against Harry E. Claiborne).
261

In recent remarks before the American Judicature Society, Senator Howell T. Heflin
discussed the federal impeachment process in light of his experience during the
impeachment proceedings involving Judge Claiborne.262 Senator Heflin explained his
perceptions of the special procedures invoked in Judge Claiborne's case, in part, as
follows:
____________________

261
S. Res. 481 was enacted pursuant to Rule XI of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials. Rule XI was adopted by the Senate in its present form in 1935, after the
impeachment trial of Judge Harold Louderback in 1933. Rule XI provides:
That in the trial of any impeachment the Presiding Officer of the Senate, upon the order of the Senate,
shall appoint a committee of
104 Nev. 115, 199 (1988) State Bar of Nevada v. Claiborne
process in light of his experience during the impeachment proceedings involving Judge
Claiborne.
262
Senator Heflin explained his perceptions of the special procedures invoked in
Judge Claiborne's case, in part, as follows:
In 1935, in an attempt to modernize the Senate impeachment process, the Senate
adopted Rule 11 of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials. . . . Reportedly, this rule was adopted because of the high level of
absenteeism among senators during the protracted trial of Judge Harold Louderback in
1933. This committee was first utilized by the Senate in the fall of 1986 to compile an
official record of information and hear the testimony of Judge Claiborne and other
witnesses. However, the committee was not allowed to make any recommendation
whatsoever in regards to whether or not Judge Claiborne should be removed from
office. The legitimacy of the committee was, itself, questioneda challenge that I feel
was indicative of the overall problems of the current impeachment process.
____________________
twelve Senators to receive evidence and take testimony at such times and places as the committee may
determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by
the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions
conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of
procedure and practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting
on impeachment trials shall govern the procedure and practice of the committee so appointed. The
committee so appointed shall report to the Senate in writing a certified copy of the transcript of the
proceedings and testimony had and given before such committee, and such report shall be received by the
Senate and the evidence so received and the testimony so taken shall be considered to all intents and
purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as
having been received and taken before the Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the
entire trial in open Senate.
See Senate Manual Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the
United States Senate, S. Doc. No. 1, 96th Cong., 1st Sess. at 174-75. Although Rule XI was adopted prior to the
impeachment trial of Judge Halsted Ritter in 1936, the Senate did not proceed in accordance with the provisions
of that Rule until Judge Claiborne's case came before it. See Senate Hearings, supra note 15, Pt. 1 at 241-51
(Judge Claiborne's Motion to Declare Rule XI, Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials as Unconstitutional).

262
Senator Heflin is a former Chief Justice of the Supreme Court of Alabama, a former Chairman of the
National Conference of Chief Justices, and was selected as the Most Outstanding Appellate Judge in the United
States by the Association of Trial Lawyers of America in 1976. See Congressional Directory, 100th Cong. 4
(1987). He is a member of the Senate Judiciary Committee and served on the twelve-member Senate
Impeachment Trial Committee in the proceedings involving Judge Claiborne.
104 Nev. 115, 200 (1988) State Bar of Nevada v. Claiborne
was indicative of the overall problems of the current impeachment process. I believe,
however, that there is no question that the Senate was authorized to form such a
committee. Constitutional justification for the creation of the Select Impeachment
Committee lies in Article I, Section 5, Clause 2 of the Constitution, which states that,
Each House (of Congress) may determine the Rules of its Proceedings. . . .
Yet, even with the existence of the committee, there were tremendous problems in
the overall impeachment process. One problem was that while the 12 senators on the
select impeachment committee were well aware of the facts and issues in the case, this
is not true for the rest of the Senate. The transcript of the Claiborne hearing totaled over
3500 pages, and it is highly improbable that many senators had time to review this
material thoroughly. Not surprisingly, at the time of the actual trial on the Senate floor,
a majority of the Senate had neither the benefit of the information in the report, nor the
time to prepare properly for deciding Judge Claiborne's fate. Furthermore, after the
committee finished its work and the matter went before the full Senate, the Senate
leadership decided not to rehear committee witnesses but to accept the committee's
written record, and to only allow the House managers, Judge Claiborne and his
attorneys to make statements on the floor. During these statements on the Senate floor,
approximately 40 members were not present in the Senate chamber during any portion
of Judge Claiborne's closing statement and I estimate that at least 35 senators were
never on the floor during the presentations by the prosecution and defense.
Though other senators had some very important business to attend to, their absence
from the proceedings (I hesitate to call it a trial) was not, in my judgment, fair to Judge
Claiborne. While I believe that the Senate satisfied its constitutional responsibilities in
the impeachment trial of Judge Harry Claiborne, I believe the process can, and should,
work better. In the futureeven, perhaps, in the immediate futurethe Senate may be
faced with a number of impeachment trials. A United States Senator cannot carry out
his impeachment responsibilities if he neither participates in the committee hearing nor
has an opportunity to gain knowledge of the case from a full trial on the Senate floor.
(Emphasis added.)
263
Other Senators have also expressed criticism of the manner in
which the Senate proceeded in Judge Claiborne's case.
____________________

263
Speech of Senator Howell T. Heflin on The Federal Impeachment Process before The American
Judicature Society (Feb. 6, 1988) at p. 4-6; see also 132 Cong. Rec. S15779 (daily ed. Oct. 9, 1986) (statement
of Senator Heflin).
104 Nev. 115, 201 (1988) State Bar of Nevada v. Claiborne
Other Senators have also expressed criticism of the manner in which the Senate proceeded
in Judge Claiborne's case. Senator Daniel J. Evans observed, for example, that [i]n prior
impeachment cases, the full Senate had an opportunity to receive all the evidence directly. No
committee was appointed to serve as a buffer between the accused and those responsible for
making the final judgment.
264
Senator Evans further remarked:
Our vote was the final word on Judge Claiborne's career. We were the trial court and
the appellate court at the same time. It was thus incumbent upon us to take the utmost
care to ensure that our proceedings were proper. I believe we lost sight of the fact that
the procedures of justice are often more important than the substance of the laws in
creating the perception of fairness.
(Emphasis added.)
265

Senator Carl M. Levin also criticized aspects of the process employed during respondent's
impeachment trial and noted that the full Senate deprived itself of a crucial feature of the
fact-finding process, the opportunity to evaluate firsthand the demeanor and credibility of
witnesses. Commenting that only the twelve members of the Senate comprising the
impeachment panel had such an opportunity, Senator Levin observed:
The rule 11 committee did an excellent job of developing a record. I have the
greatest respect for the members and staff of the committeethey had a difficult job
and they discharged it with dignity and devotion. The record they developed is essential
to understanding the case. But, in my view, it was not adequate to let the Senate make
findings in those disputed areas where witness demeanor or credibility is critical to the
process of determining what the facts are. The Senate, as a finder of fact, did not hear
or see a single witness. And, as a result, our ability to fairly reach decisions, when the
facts were in dispute, was restricted.
To reach a judgment on issues involving disputed facts where the demeanor and
credibility of the witnesses are important, I believe the Senate needed to see the
witnessesas the rule 11 committee didand not just see a record or even tapes of
witnesses testifying.
When we voted not to hear any additional witnesses, we set up a process which
made it impossible for the Senate, as the finder of fact, to fully and fairly evaluate the
credibility of witnesses.266
____________________

264
132 Cong. Rec. S16821 (daily ed. Oct. 16, 1986) (statement of Senator Evans entitled The Trial of Judge
Harry E. Claiborne).

265
Id.
104 Nev. 115, 202 (1988) State Bar of Nevada v. Claiborne
the finder of fact, to fully and fairly evaluate the credibility of witnesses.
266

(Emphasis added.) Thus, whether or not one is persuaded that respondent's conviction and his
removal from office were justified by the facts, there can be little doubt that an appearance
and atmosphere of procedural impropriety has plagued his case from its inception.
An additional circumstance contributing to the general perception and appearance of
injustice surrounding this matter warrants our discussion. Following the first trial,
respondent's counsel filed motions seeking the recusal or disqualification of Judge Hoffman
from further participation in the case.
267
The initial motion alleged that bystanders and
courtroom observers had reported that Judge Hoffman appeared to be partial towards the
prosecution, and biased against the Defendant. Therefore, defense counsel requested Judge
Hoffman to
deliberately and consciously assess his state of mind with reference to the foregoing
matters and determine whether or not:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the Defendant;
(c) he has a personal bias or prejudice concerning the Defendant's counsel; or
(d) he has personal knowledge of disputed evidentiary facts concerning a
proceeding.
268

In subsequent supplemental pleadings, defense counsel alleged specific instances wherein
Judge Hoffman had purportedly demonstrated bias and prejudice toward respondent. On June
22, 1984, Judge Hoffman filed a thirty-six page order denying respondent's motion and
responding to each factual allegation suggesting bias or the appearance of bias or prejudice on
Judge Hoffman's part.
269

Again, following the second trial, respondent filed post-conviction motions (1) to vacate
his judgment of conviction and sentence; (2) for evidentiary hearings; (3) for discovery
proceedings; and {4) for a new trial.270 On July 15, 19S6, Judge Hoffman entered an
order apprising the parties that on July S, 19S6, Chief Justice Burger had designated him
to continue as the presiding judge in any further post-conviction proceedings arising out
of respondent's criminal case.271 Judge Hoffman's order further observed that counsel
for Claiborne had not assigned as error on appeal Judge Hoffman's prior refusal to recuse
himself from presiding over the trial.
____________________

266
132 Cong. Rec. S16823 (daily ed. Oct. 16, 1986) (statement entitled: Opinion of Senator Levin on the
Claiborne Impeachment).

267
Rec. Pt. I, Vol. V, Pleading Nos. 49 and 51; Vol. VI, Pleading No. 57 (motion for judicial recusal under
28 U.S.C. 455, and first and second supplements thereto).

268
Rec. Pt. I, Vol. V, Pleading No. 49 at 3.

269
Rec. Pt. I, Vol. V, Pleading No. 56.
104 Nev. 115, 203 (1988) State Bar of Nevada v. Claiborne
ings; and (4) for a new trial.
270
On July 15, 1986, Judge Hoffman entered an order apprising
the parties that on July 8, 1986, Chief Justice Burger had designated him to continue as the
presiding judge in any further post-conviction proceedings arising out of respondent's
criminal case.
271
Judge Hoffman's order further observed that counsel for Claiborne had not
assigned as error on appeal Judge Hoffman's prior refusal to recuse himself from presiding
over the trial. Judge Hoffman concluded, therefore, that any further motions for recusal and
specific allegations of bias and prejudice must be confined to acts, words or events
occurring since the last order denying recusal was entered. Accordingly, Judge Hoffman
allowed defense counsel fifteen days within which:
[T]o file any appropriate motion for recusal, specifically alleging facts in support of any
charge of bias and prejudice on the part of the undersigned United States District Judge,
but such allegations of fact shall be limited to acts, words or events occurring since the
entry of the last order denying the motion to recuse, filed in late July, 1984. If such
motion is not filed, the Court will assume that no acts, words or events indicating bias
or prejudice of the undersigned judge in fact exist.
272

In response, on July 28, 1986, defense counsel filed a Verified Motion for Judicial
Disqualification or Recusal.
273
Counsel asserted that Judge Hoffman should recuse himself
from further participation in the case because of (1) attitudinal bias and partisanship . . . in
favor of the prosecution herein and against the Defendant; and (2) [t]he appearance of
impropriety. In this regard, defense counsel noted that a motion had been filed on behalf of
respondent in the Court of Appeals seeking the designation of a judge from within the Ninth
Circuit to preside over any post-conviction proceedings. Further, counsel observed that he
had received a letter from Judge Hoffman, dated July 11, 1986, in which Judge Hoffman
stated that he had written to Chief Judge Browning of the Ninth Circuit with respect to the
need for a new designation if there was any desire for me to hear the post-conviction
motions."274
On October 6, 19S6, after further pleadings addressing this issue were submitted, Judge
Hoffman entered an order denying the motion of judicial disqualification.275 Judge
Hoffman stated that he entertained no "feeling of bias or prejudice against Judge
Claiborne as evidenced by the record and transcripts. . . ."276
We do not suggest that defense counsel set forth sufficient factual allegations of bias or
prejudice on the part of Judge Hoffman to warrant the reversal of respondent's
conviction; nor do we suggest that Judge Hoffman was, in fact, biased or prejudiced
against respondent.
____________________

270
Rec. Pt. I, Vol. VIII, Pleading No. 81; Rec. Pt. I, Vol. IX, Pleading No. 105. Recently Judge Hoffman
entered an order denying the relief requested in those post-conviction proceedings. United States v. Claiborne,
Case No. CR-R-83-57 WEH, United States District Court for the District of Nevada (filed Jan. 27, 1988). We
understand that respondent is presently pursuing an appeal.

271
Rec. Pt. I, Vol. IX, Pleading No. 91.

272
Id.

273
Rec. Pt. I, Vol. IX, Pleading No. 92.
104 Nev. 115, 204 (1988) State Bar of Nevada v. Claiborne
designation if there was any desire for me to hear the post-conviction motions.
274

On October 6, 1986, after further pleadings addressing this issue were submitted, Judge
Hoffman entered an order denying the motion of judicial disqualification.
275
Judge Hoffman
stated that he entertained no feeling of bias or prejudice against Judge Claiborne as
evidenced by the record and transcripts. . . .
276

We do not suggest that defense counsel set forth sufficient factual allegations of bias or
prejudice on the part of Judge Hoffman to warrant the reversal of respondent's conviction; nor
do we suggest that Judge Hoffman was, in fact, biased or prejudiced against respondent. We
have, however, considered counsel's allegations and Judge Hoffman's conduct of the legal
proceedings in the context of the overall atmosphere and appearance of injustice associated
with the federal proceedings involving respondent. In this context, we regretfully conclude
that a number of Judge Hoffman's rulings may have contributed to a perception that
respondent was subjected to anomalous and prejudicial procedures in the course of the
proceedings against him. Specifically, we refer to: (1) Judge Hoffman's refusal to allow
evidentiary hearings respecting many of respondent's accusations of investigative and
governmental misconduct; (2) his rulings relative to the Brady and Jencks Act material; (3)
his rulings in connection with the prosecution's demands for notices of alibi; and (4) his
denial of the defense motion for a continuance prior to the first trial. We also note that Judge
Hoffman ordered the sequestration of a critical defense witness, Judy Ahlstrom, during a
recess in the second trial.
277
Respondent's counsel has alleged that up until that point no such
action had been taken preventing a witness from communicating with counsel during a recess.
Accordingly, respondent has asserted that Judge Hoffman's action unfairly prevented defense
counsel from attempting to reassure and calm Ms. Ahlstrom and allow her to collect her
thoughts after she was visibly shaken by a particularly grueling cross-examination.
278
Again
we stress that although these and similar allegations do not establish actual bias or prejudice
against respondent during the conduct of the trial, they do contribute to the aforementioned
perception and appearance of injustice and suggest that special adverse and prejudicial
procedures were imposed upon respondent.
____________________

274
Id. at 4-5; see Respondent's Compendium, Docket No. 17294 filed Sept. 2, 1986 (section entitled Judge
Hoffman).

275
Rec. Pt. I, Vol. IX, Pleading No. 106.

276
Id. at 14.

277
Rec. Pt. III, Vol. III at 633.

278
Rec. Pt. IV, Vol. I, Pleading No. 3 at 44-47. It should also be noted that Judge Hoffman himself
conducted a good part of that cross-examination.
104 Nev. 115, 205 (1988) State Bar of Nevada v. Claiborne
appearance of injustice and suggest that special adverse and prejudicial procedures were
imposed upon respondent.
In sum, these circumstances are relevant to our deliberations in two respects. First, we
consider them in the context of the punishment thus far exacted during the course of
respondent's trials and incarceration. See In re Ross, 99 Nev. 657, 660, 668 P.2d 1089, 1092
(1983). Second, of course, they detract from the weight which we would ordinarily accord a
judgment of conviction. In our view, the record suggests that respondent may have been
subjected to special adverse treatment restricting his right to established procedures. The
imposition of special procedures in respondent's case may well have restricted his ability to
present and defend his position fully. Accordingly, these circumstances reflect upon the
punishment respondent has suffered, as well as the weight which should be accorded his
conviction, for the purpose of assessing disciplinary sanctions.
Lastly, we observe that two additional circumstances reflect upon the unusual procedures
and the extent of the punishment thus far imposed in the protracted course of this matter. At
this court's hearing in Las Vegas on November 24, 1987, for example, more than one witness
alluded to the scorn and notoriety attached to the judicial and congressional proceedings and
the obvious torment respondent suffered as a result of that notoriety.
279
Unquestionably, as
discussed below, the scorn and ignominy respondent has suffered as a result of the protracted
federal judicial proceedings and the ensuing impeachment proceedings has been substantial.
In June of 1987, following his removal from office and after serving thirteen months in
prison, respondent was released from prison to a federally supervised halfway house in Las
Vegas to complete his term.
280
In all, respondent served seventeen months of his two-year
term before he was fully released from confinement.
281

IV. RESPONDENT'S PROFESSIONAL BACKGROUND
Respondent Harry E. Claiborne officially assumed the duties of United States District
Judge for the District of Nevada on September 1, 1978. He was nominated by President
Carter to fill a vacancy on the bench in July of that year, and was confirmed by the United
States Senate on August 11, 197S.2S2 During the appointment process, on August S,
197S, a hearing was held before the United States Senate Committee on the Judiciary
respecting Mr.
____________________

279
See, e.g., State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing at 45.

280
Claiborne Returns to L.V. to Complete Term, Las Vegas Sun, June 17, 1987.

281
Claiborne Disbarment Hearing Set, Las Vegas Sun, November 17, 1987.
104 Nev. 115, 206 (1988) State Bar of Nevada v. Claiborne
the United States Senate on August 11, 1978.
282
During the appointment process, on August
8, 1978, a hearing was held before the United States Senate Committee on the Judiciary
respecting Mr. Claiborne's qualifications and background.
283
At the start of that hearing, the
acting chairman, Senator DeConcini, stated for the record that he had been advised that a
substantial majority of the Standing Committee on the Federal Judiciary of the American
Bar Association was of the opinion that Mr. Claiborne was well qualified for appointment
to the federal bench. A minority of the Bar Association's committee found him not qualified
on the sole ground that Claiborne was, at that time, sixty-one years of age.
284

Thereafter, Senator DeConcini recognized Senators Howard W. Cannon and Paul Laxalt
of Nevada who testified on Mr. Claiborne's behalf respecting his character and his
qualifications. Specifically, Senator Cannon praised Mr. Claiborne as one of the foremost
criminal attorneys in the west and noted that [h]e is known and respected in every
courtroom in our state and, by reputation, in many others throughout the United States. In
regard to respondent's professional accomplishments, Senator Cannon observed that Mr.
Claiborne had distinguished himself not only as an exceptional defense attorney but also as a
police officer, an assistant district attorney, a city attorney for North Las Vegas and
Henderson, Nevada, and an assemblyman in the Nevada Legislature.
285
In the latter position,
Senator Cannon observed that although respondent had served only one term in the Nevada
State Assembly,
he was elected Assistant Majority Leader and chairman of the Judiciary Committee.
And, in that one term he was primarily responsible for passage of legislation placing the
question of a probation law on the ballot for statewide consideration. He then
campaigned throughout the state to win approval of the measure. When the probation
law was approved, he was then appointed to be Nevada's first Director of Probation.
286
Senator Laxalt also praised Mr.
____________________

282
The American Bench 1453 (S. Livermore 3rd ed. 1985/86); W. Dornette and R. Cross, Federal Judiciary
Almanac 648-49 (1986); see generally Claiborne to be Nominated to Judgeship, Reno Evening Gazette, July 24,
1978.

283
Senate Hearings, supra note 15, Pt. 4 at 2251-62.

284
Senate Hearings, supra note 15, Pt. 4 at 2254-55 (Claiborne Ex. 24).

285
Senate Hearings, supra note 15, Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard
Cannon). See Rec. Pt. III, Vol. IV at 820-21.

286
Senate Hearings, supra note 15, Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard
Cannon).
104 Nev. 115, 207 (1988) State Bar of Nevada v. Claiborne
Senator Laxalt also praised Mr. Claiborne's nomination to the federal bench testifying in part:
The people of the State of Nevada are very, very respectful of this man's abilities not
only as a lawyer but as a person who has been heavily engaged in all aspects of
community activity in our state.
287

The record of the United States Senate Judiciary Committee proceedings of August 8, 1978,
further discloses that in 1974 and 1975 Mr. Claiborne served as a special assistant to the
United States Senate Committee on Rules and Administration during the historic hearings on
Nelson Rockefeller's nomination to the vice-presidency.
288

At the time of respondent's nomination and confirmation by the United States Senate, the
print media throughout this state echoed the testimony of Senators Laxalt and Cannon
respecting respondent's background, qualifications, contributions to the legal community, and
the high esteem in which he was held by his colleagues. For example, on August 6, 1978, in
an editorial entitled: U.S. Judge Claiborne More Than Qualified, the Las Vegas
Review-Journal stated that few attorneys can boast the kind of record Harry Claiborne has
put together in his 31 years in the State of Nevada.
289
The Review-Journal observed that
Mr. Claiborne has a great deal of respect from his peers, and one consistent thing about his
character keeps popping uphard-working. Everyone describes the intense determination he
puts into his efforts in a courtroom or while studying his legal papers.
290

Similarly, in an editorial entitled: Claiborne Good Choice, the Reno Evening Gazette
stated:
Claiborne also has caught the attention and praise of his peers for his charity work.
He tops the list of Nevada trial lawyers willing to represent people and organizations
without compensation whenever he was impressed by the importance of a case or the
gravity of an issue to be defended by an individual or organization unable to pay.
291
{Emphasis added.)
____________________

287
Senate Hearings, supra note 15, Pt. 4 at 2258 (Claiborne Ex. 24, statement of Senator Paul Laxalt).

288
Senate Hearings, supra note 15, Pt. 4 at 2261 (Claiborne biography).

289
U.S. Judge Claiborne More Than Qualified, Las Vegas Review-Journal, Aug. 6, 1978.

290
Id.

291
Claiborne Good Choice, Reno Evening Gazette, July 27, 1978.
104 Nev. 115, 208 (1988) State Bar of Nevada v. Claiborne
(Emphasis added.) The Gazette's observation in this regard is evidenced by the fact that, in
1972, Mr. Claiborne was recognized for supporting and providing legal services to the poor
when he received an annual award from the Clark County Legal Services.
292
Moreover, over
the years Mr. Claiborne has unselfishly responded to the call of the trial courts of this state
whenever they experienced difficulties in finding attorneys to represent an unpopular cause.
293
Further, the Gazette correctly noted that Mr. Claiborne has provided his considerable
talents as a defense attorney, without charge, to numerous indigent defendants whose legal
problems stirred his compassion.
294
See, e.g., Roy v. State, 87 Nev. 517, 489 P.2d 1158
(1971) (respondent Claiborne successfully prosecuted appeal of mentally retarded defendant
employed as a busboy who had been convicted of the offense of selling a lid of marijuana
to an undercover police officer who had feigned interest in and friendship for the defendant).
The many newspaper articles and editorials appearing throughout the state during this
period of time observed that Mr. Claiborne first came to Nevada during World War II as a
member of the United States Army Air Corps stationed at what is now known as Nellis Air
Force Base.
295
Previously, he was educated at Ouachita Baptist University, and he received
his degree in law from Cumberland University in 1941.
296
In 1942, he was admitted to
practice in his home state of Arkansas, but, after the war, he remained in Southern Nevada
and worked for approximately two years as a police officer in Las Vegas before taking and
passing the Nevada Bar Examination in 1946.
297
Later, Mr. Claiborne not only represented
many police officers in legal matters without charge, but helped establish the police
protective association in Las Vegas and was instrumental in securing the passage of
legislation providing for civil service status for policemen and firemen by the Nevada
legislature.29S
____________________

292
Senate Hearings, supra note 15, Pt. 1 at 194 (pre-trial statement of H. E. Claiborne).

293
Senate Hearings, supra note 15, Pt. 3 at 1513-14.

294
See also Rec. Pt. III, Vol. IV at 823.

295
Prominent Vegas Attorney in Line for Federal Judgeship, Nevada State Journal, July 25, 1978; Claiborne
to be Nominated to Judgeship, Reno Evening Gazette, July 24, 1978; U.S. Judge Admits to Being Colorful,
Las Vegas Review-Journal, August 6, 1978; Where I Stand, Las Vegas Sun, July 30, 1978 (editorial by H.
Greenspun). See also Senate Hearings, supra note 15, Pt. 4 at 2254-61 (Claiborne Ex. 24); and Rec. Pt. III, Vol.
IV at 818-19.

296
The American Bench, supra note 14; Rec. Pt. III, Vol. IV at 817.

297
The American Bency, supra note 14; Senate Hearings, supra note 15, Pt. 1 at 925 (testimony of H. E.
Claiborne) and Pt. 4 at 2256-57 (Claiborne Ex. 24, statement of Senator Howard Cannon); Rec. Pt. III, Vol. IV
at 819-20.
104 Nev. 115, 209 (1988) State Bar of Nevada v. Claiborne
lation providing for civil service status for policemen and firemen by the Nevada legislature.
298

For the next thirty-one years, as the above-noted articles, editorials, and testimony
indicate, he earned the wide respect of his peers, as well as the public-at-large. He was
considered a consummate professional dedicated to the practice of law. In 1960, his
colleagues in the State Bar of Nevada presented him with an award in recognition of his
outstanding service in a criminal case.
299
His colleagues also elected him as president of the
Clark County Bar Association in the early 1970's. Additionally, he was named a Fellow in the
American College of Trial Lawyers.
300
Thus, it cannot be questioned that, on September 1,
1978, when Mr. Claiborne officially assumed the duties of United States District Judge, he
left behind a well-respected and well-established private practice reflecting thirty-one years of
dedication to exemplary legal advocacy. It is equally noteworthy that the conviction giving
rise to this proceeding is apparently the only spot on respondent's previously unblemished
record. Our review of the record before us, as well as this court's disciplinary files, reveals
that the instant proceeding is the only instance in which the question of respondent's ethical
fitness to practice law has been submitted to this court. Further, the State Bar has not apprised
us of any other disciplinary action against respondent during the course of his career. As a
justice of the Illinois Supreme Court observed in a case remarkably similar to this one:
This record indicates that this member of our bar, who has given so much to public
service, now in his seventieth year, has until this unhappy event enjoyed an excellent
reputationsomething which cannot be bought or sold in any market place, but is
acquired only by cultivation in all phases of human conduct.
See In re Walker, 364 N.E.2d 76, 79 (Ill. 1977) (Dooley, J., concurring). In light of this
record, we conclude that we would be remiss in our obligations in this disciplinary
proceeding if we failed to give careful and thoughtful consideration [to] the evidence of
good character and reputation of the Respondent, and his exemplary professional standing. . .
. See State v. Steger, 433 P.2d 225, 227 (Okla. 1966); see also District of Columbia Bar v.
Kleindienst, 345 A.2d 146 (D.C. 1975); In re Ford's Case, 149 A.2d 863, 864 (N.H. 1959).
____________________

298
Senate Hearings, supra note 15, Pt. 1 at 926 (testimony of H. E. Claiborne).

299
The American Bench, supra note 14.

300
Id.
104 Nev. 115, 210 (1988) State Bar of Nevada v. Claiborne
V. DISCUSSION
As previously indicated, in order to afford the parties an opportunity to present their
respective views concerning the legal issues before us, and, if they so desired, to present the
testimony of witnesses addressing the factual and legal issues under consideration, we
scheduled a public hearing in this matter for November 24, 1987. At that hearing, present Bar
Counsel, John Howe, Esq., appeared for and on behalf of the State Bar of Nevada. Oscar
Goodman, Esq., and David Goldwater, Esq., appeared for and on behalf of respondent
Claiborne. Numerous other persons appeared and spoke as friends of the court. In addition,
counsel for the parties advised this court as to their respective positions regarding the
applicable law.
Thereafter, on November 25, 1987, we issued a preliminary decision observing in part:
Fundamentally, the authorities cited to us by counsel for both parties establish that:
(1) the paramount objective of bar disciplinary proceedings is not additional
punishment of the attorney, but rather to protect the public from persons unfit to serve
as attorneys and to maintain public confidence in the bar as a whole; see In re
Cochrane, 92 Nev. 253, 549 P.2d 328 (1976); (2) [i]n a disciplinary proceeding, it is
the duty of this court to look beyond the label given to a conviction in order to
determine whether the underlying circumstances of the conviction warrant discipline;
see Sloan v. State [Bar], 102 Nev. 436, 726 P.2d 330 (1986); In re Cochrane, supra; (3)
this court must also consider the isolated nature of an attorney's conduct as well as his
prior, exemplary professional standing; see Sloan v. State [Bar], supra; In re
Francovich, 94 Nev. 104, 575 P.2d 931 (1978); and (4) this court should examine the
retribution and punishment already exacted in determining whether further discipline is
warranted. See Sloan v. State Bar, supra; In re Ross, 99 Nev. 657, 668 P.2d 1089
(1983); Flanders v. State Dep't of Commerce, 87 Nev. 303, 486 P.2d 499 (1971); In re
Reno, 57 Nev. 314, 64 P.2d 1036 (1937). Furthermore, humanitarian concerns such as
age, ill health, or other disability warrant consideration in disciplinary proceedings. See
In re Parks, 64 Nev. 478, 480, 184 P.2d 355, 356 (1947).
Our preliminary decision stated that application of these fundamental legal principles to
the facts reflected in the record persuaded us that no further discipline was warranted, and
that, therefore, we declined to impose additional punishment upon respondent by way of
professional discipline. See Docket No. 17294, order filed November 25, 1987.
104 Nev. 115, 211 (1988) State Bar of Nevada v. Claiborne
Having heretofore set forth in some detail the facts disclosed by our review of the record,
we now turn to a more particularized discussion of the applicable legal principles as they
relate to those facts and the evidence adduced at the hearing of November 24, 1987.
[Headnote 4]
We begin our analysis by again emphasizing that it is this court's obligation in a
disciplinary proceeding to look beyond the label given to a conviction to the true nature of the
facts, in order to determine whether the underlying circumstances of the conviction warrant
discipline. See Sloan v. State Bar, 102 Nev. 436, 440, 726 P.2d 330, 333 (1986); see also In
re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976). Although SCR 111(3) provides that a
certificate of conviction is conclusive evidence of the commission of the crime stated in it in
any disciplinary proceeding instituted against an attorney based on the conviction, it remains
this court's obligation to explore the actual conduct of the attorney that resulted in that
conviction. After all, the question of the extent of the discipline to be imposed centers around
the attorney's conduct itself, not merely the fact of a conviction. See Sloan v. State Bar,
supra; In re Cochrane, supra; see also In re Gross, 659 P.2d 1137, 1140 (Cal. 1983)
(whatever may prompt an inquiry into an attorney's fitness to practice law, it is the attorney's
conduct itself which warrants discipline, and not the conviction which arises therefrom); In re
Crane, 178 N.E.2d 349, 350 (Ill. 1961) (a consideration of the actual conduct of an attorney is
not only proper, but may be indispensable, to an informed appraisal of the appropriate
disciplinary action).
It is true, of course, that courts have considered the facts and circumstances underlying an
attorney's conviction in different contexts and for various purposes. First, in disciplinary
matters courts often review the underlying circumstances of a conviction to ascertain whether
the attorney's conduct involved moral turpitude. In the cases of In re Hallinan, 272 P.2d 768
(Cal. 1954), and In re Hallinan, 307 P.2d 1 (Cal. 1957), for example, the California Supreme
Court considered the matter of an attorney who had been convicted of willfully and
knowingly fil[ing] false and fraudulent income tax returns, in violation of 26 U.S.C.
145(b).
301
See Hallinan, 272 P.2d at 770 n.1. In the first Hallinan decision, Justice Traynor,
writing for the court, concluded that an attorney's conviction under 26 U.S.C. 145{b),
was insufficient to warrant summary disbarment because, under the applicable California
statutes, summary disbarment of an attorney is only warranted "when the crime of which
he was convicted involves moral turpitude." Id. at 771 {emphasis in original).
____________________

301
At that time, 26 U.S.C. 145(b) provided:
Any person required under this chapter to collect, account for, and pay over any tax imposed by this
chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who
willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment
thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction
thereof, be
104 Nev. 115, 212 (1988) State Bar of Nevada v. Claiborne
decision, Justice Traynor, writing for the court, concluded that an attorney's conviction under
26 U.S.C. 145(b), was insufficient to warrant summary disbarment because, under the
applicable California statutes, summary disbarment of an attorney is only warranted when
the crime of which he was convicted involves moral turpitude. Id. at 771 (emphasis in
original). Moreover, Justice Traynor observed, If an attorney could be summarily disbarred
after conviction for a crime, the minimum elements of which do not involve moral turpitude,
he would never have an opportunity to be heard on the issue on which his disbarment
depends. Id. at 772. After reviewing the pertinent authorities, Justice Traynor further
observed:
The foregoing cases establish that fraud is not an essential element of the offense
proscribed by section 145(b), that some measure of bad faith or evil intent is an
essential element, but that such bad faith or evil intent, which can be inferred from
evidence that the defendant acted without justifiable excuse, without ground for
believing his acts were lawful, or in careless disregard of the lawfulness of his acts, do
not necessarily involve moral turpitude.
Id. at 774 (emphasis added). Accordingly, Justice Traynor concluded:
When, as in the present case, it appears that an attorney, whose conviction does not
warrant summary disbarment, might nevertheless have been guilty of acts involving
moral turpitude, we have established the practice of referring the matter to the State Bar
for an investigation of the question whether in the commission of the crime the
convicted lawyer was guilty of misconduct that requires his suspension or disbarment.
This court has inherent power over the admission, suspension, and disbarment of
attorneys, and in the exercise thereof can initiate disciplinary proceedings on its own
motion, and, in so doing, it may adopt any suitable process or mode of proceeding.
Id. at 774-75 (citations omitted; emphasis added). In short, the California court's two
decisions in the Hallinan matter demonstrate that the facts and circumstances underlying an
offense are properly considered where there is sufficient doubt whether the elements of the
crime and the actual conduct resulting in the conviction necessarily involve moral
turpitude.
____________________
fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs
of prosecution.
The Internal Revenue Code has since been amended. The provisions of 26 U.S.C. 145(b) have been
incorporated primarily in 26 U.S.C. 7201 (attempt to evade or defeat tax) and 26 U.S.C. 7202 (willful failure
to collect or pay over tax).
104 Nev. 115, 213 (1988) State Bar of Nevada v. Claiborne
elements of the crime and the actual conduct resulting in the conviction necessarily involve
moral turpitude. See also In re Cochrane, 92 Nev. 253, 254-55, 549 P.2d 328, 329 (1976)
(this court's de novo review of the facts underlying an attorney's conviction for willful failure
to file an income tax return under 26 U.S.C. 7203 established insufficient facts to support a
finding that the attorney had an intent to defraud, or was intentionally dishonest for the
purpose of personal gain; accordingly, this court refused to deem the conviction to be one
involving moral turpitude).
Second, even where the elements of a conviction necessarily establish conduct involving
moral turpitude, courts examine the facts and circumstances underlying an attorney's
conviction to determine the severity of the discipline warranted by the conduct involved. For
example, in the case of In re Kristovich, 556 P.2d 771 (Cal. 1976), the California Supreme
Court concluded:
We are here concerned with petitioner's fitness to continue serving as an attorney.
[T]he purpose of a disciplinary proceeding is not to punish the attorney but to inquire
into the moral fitness of an officer of the court to continue in that capacity and to afford
protection to the public, the courts and the legal profession. (Clancy v. State Bar
(1969) 71 Cal.2d 140, 151, 77 Cal.Rptr. 657, 664, 454 P.2d 329, 336.) For the purposes
of these proceedings, petitioner's convictions for perjury conclusively establish that he
committed acts under circumstances which together constitute perjury (Bus. & Prof.
Code, 6101). The question of moral turpitude is one of law, and the determination of
that issue is this court's responsibility. (In re Higbie (1972) 6 Cal.3d 562, 569, 99
Cal.Rptr. 865, 493 P.2d 97.)
We have repeatedly regarded the offense of perjury, which entails a willful false
statement, contrary to oath, as to a material matter which one knows to be false, to
involve moral turpitude. (See In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907;
In re Allen (1959) 52 Cal.2d 762, 768, 344 P.2d 609, (soliciting others to commit
perjury).) Accordingly, petitioner has engaged in conduct involving moral turpitude,
and this court is required by section 6102 subdivision (b) of the Business and
Professions Code to discipline him. The severity of such discipline depends upon the
gravity of the crime and the circumstances of the case. In examining the circumstances
giving rise to the offense in question, we are not restricted to a consideration of the
specific elements of the crime, but may look to the whole course of the attorney's
conduct which reflects upon his fitness to practice law. (In re Higbie, supra, 6 Cal.3d
562, 572, 99 Cal.Rptr.
104 Nev. 115, 214 (1988) State Bar of Nevada v. Claiborne
572, 99 Cal.Rptr. 865, 493 P.2d 97.) Therefore, we now proceed beyond the bare
conviction to the wider analysis, including the facts of petitioner's case and his
explanation of them.
556 P.2d at 773 (emphasis added).
Similarly, in In re Walker, 364 N.E.2d 76 (Ill. 1977), the Illinois Supreme Court
considered the extent of the discipline warranted in a case involving an attorney convicted of
the same crime as respondent Claiborne. The court observed:
We need not consider whether the offense defined in section 7206(1) of title 26 of
the United States Code is a crime involving moral turpitude. The Hearing Board found
that the respondent's conviction of that offense tended to bring the legal profession into
disrepute and warrants discipline. This finding was concurred in by the Review Board.
Although a mere conviction may not necessarily establish moral turpitude, it does
establish misconduct constituting grounds for discipline in the absence of mitigating
circumstances. (In re O'Hallaren, 64 Ill.2d 426, 1 Ill.Dec. 332, 356 N.E.2d 520.) As we
stated in In re Andros, 64 Ill.2d 419, 426, 1 Ill.Dec. 325, 327, 356 N.E.2d 513, 515:
An attorney, above all others, is aware of the responsibility to observe the
requirements of the law. We have reviewed the record and conclude that the finding
that the respondent's conviction tended to bring the legal profession into disrepute is
supported by clear and convincing evidence and justifies disciplinary action. Indeed the
respondent's brief does not seriously contend otherwise. The issue before us, then, is
what quantum of discipline is merited by respondent's conviction. In making that
determination, we may look beyond the plea and the conviction, not to consider
whether discipline is warranted, but to consider the nature of the discipline justified by
the conduct of respondent. In re Andros, 64 Ill.2d 419, 1 Ill.Dec. 325, 356 N.E.2d 513;
In re Crane, 23 Ill.2d 398, 178 N.E.2d 349.
364 N.E.2d at 77 (emphasis added). Thereafter, the court in Walker detailed the facts
underlying that case. We deem those facts of such similarity and significance to the instant
matter that we quote the Illinois Supreme Court's discussion at length.
Respondent entered the practice of law in 1935. In 1938 he was elected to the first of
his three terms as county judge. After service in the armed forces during World War II
he served one term in the Illinois legislature. Following that he was a hearing officer
with the Illinois Commerce Commission for eight years. He was elected to the office of
State's Attorney of Jefferson County in 1966, and served in that capacity until 1972.
104 Nev. 115, 215 (1988) State Bar of Nevada v. Claiborne
Attorney of Jefferson County in 1966, and served in that capacity until 1972. During his
tenure as State's Attorney he also engaged in the private practice of law. It was in 1969,
when respondent was endeavoring to simultaneously fulfill the duties of State's
Attorney and maintain a private practice, that the events which ultimately led to the
instant action occurred.
The indictment which forms the basis for the present disciplinary action charged that
for the year 1969 respondent had taxable income of $22,602.68 but reported only
$13,055. Although respondent was prosecuted by the Federal authorities, his plea
accepted by the district court, and a $5,000 fine imposed, the record reflects that
attorneys for the office of the regional counsel of the Internal Revenue Service stated in
a report after investigating the respondent that it was felt that these unreported receipts
that were reflected on the return lacked a criminal intent. It is clear that respondent's
failure to report all his taxable income was the result of a bookkeeping system so
shoddy that it has been variously characterized before this court as incomprehensible
and nonexistent. . . . Prior to 1969, this had once resulted in respondent overstating his
income and receiving a tax refund; in 1969, the opposite occurred. In short, the proper
amount of income was recorded for the year 1969, but many notations were in the
wrong books and so were not found when the year's income was totalled by his office
help for tax purposes. When respondent discovered the error, he filed an amended
return, 14 months prior to his indictment. The income reported on this amended return,
this time calculated after searching all the ledger books for 1969 income, so closely
approximated the correct income figure that the tax to be paid on it was just $292 less
than the tax liability eventually assessed against respondent's 1969 income.
There is no question but that respondent's conduct fell short of that degree of care
which an attorney should give to the keeping of his income records and cannot be
condoned. His apparent lack of fraudulent intent, however, as recognized by the
Internal Revenue Service's own attorneys, together with a background in public service
which can only be labeled exemplary, mitigate against the suspension recommended by
the majority report of the Review Board. We, therefore, hold that in light of
respondent's conduct and all the aforementioned extenuating circumstances he is
deserving of the censure of this court.
Id. at 77-78. Thus, in Walker, the Illinois Supreme Court examined the circumstances
underlying the attorney's conviction and concluded that extenuating factors mitigated
against a sanction more severe than censure.
104 Nev. 115, 216 (1988) State Bar of Nevada v. Claiborne
concluded that extenuating factors mitigated against a sanction more severe than censure. See
also District of Columbia Bar v. Kleindienst, 345 A.2d 146, 149 (D.C. 1975) (court
considered fact that attorney was caught up in a highly charged political atmosphere. . .'
mitigated the criminal behavior involved, i.e., repeated misrepresentations to a United States
Senate committee); Louisiana State Bar Ass'n v. Loridans, 338 So.2d 1338, 1347 (La. 1976)
(although issue of guilt may not be relitigated, character of misconduct resulting in conviction
may be examined for mitigating circumstances); In re La Duca, 299 A.2d 405 (N.J. 1973);
Levy v. Association of the Bar of City of New York, 333 N.E.2d 350 (N.Y. 1975); Office of
Disciplinary Counsel v. Troback, 383 A.2d 952 (Pa. 1978).
A third consideration has compelled our attention to the facts and circumstances
underlying respondent's conviction in the instant case. As we have noted throughout the
above factual discussion, respondent has tendered for our consideration the issue of whether
the proceedings against him in federal court were conducted fairly, in accord with due process
of law, and in a manner entitling them to undiminished weight in a disciplinary proceeding
before this court. Early on in these proceedings, in our order issued on September 16, 1986,
we observed:
On the basis of evidence obtained to date as a result of this court's order of July 22,
1986, and in light of the several dissenting opinions of judges of the United States
Court of Appeals for the Ninth Circuit, this court has determined that it cannot
summarily dismiss respondent's contentions.
See State Bar v. Claiborne, Docket No. 17294, order filed September 16, 1986; see, e.g.,
United States v. Claiborne, 781 F.2d 1334 (9th Cir. 1986) (Pregerson, J., dissenting); United
States v. Claiborne, 781 F.2d 1327 (9th Cir. 1986) (Reinhardt, J., dissenting); United States v.
Claiborne, 781 F.2d 1325 (9th Cir. 1985) (Ferguson, J., dissenting).
Although it is not the function of this court to sit in review of respondent's federal
judgment of conviction, or to relitigate the question of guilt, nonetheless it is clear that [t]he
two judicial systems of courts, the state judicatures and the federal judiciary, have
autonomous control over the conduct of their officers. . . . See Theard v. United States, 354
U.S. 278, 281 (1957). Accordingly, the United States Supreme Court, in considering the
question of whether disbarment by a state should be followed by disbarment by the federal
courts, concluded that it was proper for it to inquire into whether the state procedures
resulting in state disbarment suffered from any lack of due process. See In Re Ruffalo, 390
U.S. 544, 550, modified 392 U.S. 919 (1968); Selling v. Radford, 243 U.S. 46, 51 {1917).
104 Nev. 115, 217 (1988) State Bar of Nevada v. Claiborne
Selling v. Radford, 243 U.S. 46, 51 (1917). Additionally, in Selling the Court stated that it
would recognize the judgment of a state court in a bar proceeding unless
from an intrinsic consideration of the state record, one or all of the following conditions
should appear: 1. That the state procedure from want of notice or opportunity to be
heard was wanting in due process; 2, that there was such an infirmity of proof as to
facts found to have established the want of fair private and professional character as to
give rise to a clear conviction on our part that we could not consistently with our duty
accept as final the conclusion on that subject; or 3, that some other grave reason existed
which should convince us that to allow the natural consequences of the judgment to
have their effect would conflict with the duty which rests upon us not to disbar except
upon the conviction that, under the principles of right and justice, we were constrained
so to do.
See Selling, 243 U.S. at 51. See also SCR 114(3).
Analogously, where grave allegations are raised respecting the investigative, prosecutorial,
and procedural fairness of the proceedings underlying an attorney's conviction, any
disciplinary action based solely on that conviction, without an intrinsic consideration of the
record of those proceedings, would clearly conflict with the duty which rests upon us in the
performance of our disciplinary function, to proceed in accordance with principles of right
and justice. Selling v. Radford, 243 U.S. at 51. See generally Potter v. State Bd. of Med.
Exam'rs, 101 Nev. 369, 371, 705 P.2d 132, 134 (1985) (the interest in practicing one's
profession cannot be arbitrarily abridged or revoked); Burleigh v. State Bar of Nevada, 98
Nev. 140, 145, 643 P.2d 1201, 1204 (1982) (a state cannot exclude a person from the practice
of law without due process of law).
With these considerations in mind, and from our review of the facts, circumstances and
conduct underlying respondent's federal conviction, we conclude that respondent has indeed
engaged in conduct deserving of discipline. Respondent himself has conceded that he was
careless and negligent with regard to his personal obligations as a taxpayer. Unquestionably,
that conduct, as in the case of In re Walker, 364 N.E.2d 76, 77 (Ill. 1977), tends to bring the
legal profession into disrepute. In our view, respondent's conduct fell short of that degree of
care which an attorney should give to the keeping of his income tax records and cannot be
condoned. Id. at 78. Moreover, the disciplinary rules governing the legal profession in this
state during the period in question prohibited a lawyer from engaging in conduct prejudicial
to the administration of justice and reflecting adversely on his fitness to practice law.
104 Nev. 115, 218 (1988) State Bar of Nevada v. Claiborne
cial to the administration of justice and reflecting adversely on his fitness to practice law. See
ABA Code of Professional Responsibility, DR 1-102(A)(5), (6).
302
We conclude, therefore,
that respondent slighted his responsibilities under these provisions by virtue of his negligent
and careless attention to his legal obligations as a taxpayer during the years 1979 and 1980.
In so concluding, for perhaps the first time throughout the tortured history of respondent's
travails, respondent has been extended the benefit of the doubt. Based upon our extended
consideration of the record, we have emerged with an abiding doubt as to respondent's guilt
under a criminal standard of proof. Therefore, as to respondent's conviction, we are precisely
in the position specified by the United States Supreme Court, having concluded that there
was such an infirmity of proof as to facts found to have established the want of fair private
and professional character as to give rise to a clear conviction on our part that we could not
consistently with our duty accept as final the conclusion on that subject. Selling, 243 U.S. at
51.
Although our conclusion in this regard renders it unnecessary to consider whether the
conduct resulting in respondent's conviction involved moral turpitude, we reiterate that our
view of the facts is in complete accord with the factual analysis tendered by Senator Hatch.
As noted, Senator Hatch carefully reviewed the facts of this case and concluded that they do
not sufficiently support a finding that respondent willfully signed his returns intending to
defraud, or that he was intentionally dishonest for the purpose of personal gain. Under these
circumstances, were it necessary for us to reach the issue, we would entertain grave doubts as
to whether respondent's conduct was sufficiently willful and intentional to justify a finding of
moral turpitude. See In re Cochrane, 92 Nev. at 255, 549 P.2d at 329; see also In re Reno, 57
Nev. 314, 330, 64 P.2d 1036, 1041 (1937) (where physician's license to practice was revoked
based upon a criminal conviction, this court modified the order of revocation where
circumstances created substantial doubt as to whether physician's conduct involved moral
turpitude).
As stated, however, the record in the instant case nonetheless demonstrates grounds
warranting the imposition of discipline. Therefore, the issue before us is the severity of the
disciplinary sanction to be imposed. The underlying facts and circumstances of the
conviction, as well as all relevant factors in mitigation of any possible sanction, are
appropriately considered in this regard. Sloan v. State Bar, supra; In re Cochrane, supra; In re
Kristovich, 556 P.2d 771, 773 {Cal.
____________________

302
These specific provisions, among others, were repealed on March 28, 1986, and replaced by the Model
Rules of Professional Conduct. See SCR 150.
104 Nev. 115, 219 (1988) State Bar of Nevada v. Claiborne
Kristovich, 556 P.2d 771, 773 (Cal. 1976); In re Walker, 364 N.E.2d 76, 77 (Ill. 1977).
Moreover, this court must consider all the relevant factors and mitigating circumstances on a
case-by-case basis. See Murray v. State Bar of California, 709 P.2d 480, 485 (Cal. 1985).
See generally In re Kellar, 88 Nev. 63, 493 P.2d 1039 (1972); In re Parks, 64 Nev. 478, 481,
184 P.2d 355, 356 (1947). There are no fixed standards as to the appropriate penalty in
disciplinary actions. Alberton v. State Bar of California, 686 P.2d 1177, 1185 (Cal. 1984),
cert. denied, 470 U.S. 1007 (1985).
Further, in reaching a just determination in this regard, we must remain mindful of the
primary goals of disciplinary action. As we observed in Cochrane, the fundamental
objective of disciplinary action . . . is not additional punishment of the attorney but rather to
protect the public from persons unfit to serve as attorneys . . . and to maintain public
confidence in the bar as a whole. See Cochrane, 92 Nev. at 255, 549 P.2d at 329, citing In re
Ford's Case, 149 A.2d 863, 864 (N.H. 1959).
303
Accordingly, we turn to an examination of
those factors relevant to respondent's fitness to serve as an officer of the court and to continue
the practice of a profession imbued with the public interest and trust. See In re Echeles, 430
F.2d 347 (7th Cir. 1970) (purpose of bar proceedings is not to punish but to determine the
fitness of an officer of the court to continue in that capacity and to protect the courts and the
public from the official ministration of persons unfit to serve); Standing Com. on Dis. of
United States v. Ross, 735 F.2d 1168, 1170 (9th Cir.), cert. denied, 469 U.S. 1081 (1984); see
also Ex Parte Wall, 107 U.S. 265, 273 (1882).
The obvious circumstances to be considered in this regard encompass the alleged conduct
underlying the charges against respondent in the criminal proceedings. As we detailed above,
however, the first four counts of the indictment related to the accusations respecting the
solicitation and acceptance of bribes from Joseph Conforte.304 In view of the substantial
evidence that Conforte's accusations were nothing more than the unreliable, highly
motivated effusions of a brothel owner and fugitive from justice, we are compelled to
discount completely, as did the government in dismissing the Conforte counts, any
inference of attorney misconduct that might be associated with them.
____________________

303
Our review of the legal authorities reveals that an overwhelming majority of states has adopted a similar
approach in bar disciplinary matters. See, e.g., Ex Parte Wall, 107 U.S. 265 (1882) (bar proceedings are not for
purposes of punishment but seek to protect the courts and the public from attorneys unfit to serve); Matter of
Riley, 691 P.2d 695, 706 (Ariz. 1984); In re Kristovich, 556 P.2d 771 (Cal. 1976); District of Columbia Bar v.
Kleindienst, 345 A.2d 146, 147 (D.C. App. 1975); The Florida Bar v. Saphirstein, 376 So.2d 7 (Fla. 1979); In re
Crisel, 461 N.E.2d 994 (Ill. 1984); Louisiana State Bar Ass'n v. Bosworth, 481 So.2d 567 (La. 1986); Matter of
Freedman, 277 N.W.2d 635 (Mich. 1979); Matter of Discipline of Kraemer, 361 N.W.2d 402 (Minn. 1985); In
re Maier, 664 S.W.2d 1 (Mo. 1984); Matter of Kushner, 502 A.2d 32 (N.J. 1986); Matter of Maragos, 285
N.W.2d 541 (N.D. 1979); In re Scannell, 617 P.2d 256 (Or. 1980); Office of Disciplinary Counsel v. Tumini,
453 A.2d 310 (Pa. 1982); Carter v. Cianci, 482 A.2d 1201 (R.I. 1984); McInnis v. State, 618 S.W.2d 389 (Tex.
Civ. App. 1981), cert. denied, 456 U.S. 976 (1982); Matter of Stock, 704 P.2d 611 (Wash. 1985).
104 Nev. 115, 220 (1988) State Bar of Nevada v. Claiborne
however, the first four counts of the indictment related to the accusations respecting the
solicitation and acceptance of bribes from Joseph Conforte.
304
In view of the substantial
evidence that Conforte's accusations were nothing more than the unreliable, highly motivated
effusions of a brothel owner and fugitive from justice, we are compelled to discount
completely, as did the government in dismissing the Conforte counts, any inference of
attorney misconduct that might be associated with them. Thus, we conclude that these
unfounded charges support no inference that respondent's continued practice of law would
endanger the public.
Next, Count VII of the indictment charged that respondent submitted a false financial
disclosure form to the Judicial Ethics Committee in 1978. The jury acquitted respondent of
this charge, and we have discovered nothing in the record supporting a conclusion that
respondent otherwise violated any rules of professional or judicial conduct relating to the
Judicial Ethics Committee disclosure form. Accordingly, we conclude that the record reveals
on impairment to the public's interest in a competent bar arising out of the conduct underlying
Count VII.
The remaining counts of the indictment against respondent concern his tax returns for the
years 1979 and 1980. As Senator Hatch has observed, respondent's conduct in this regard is
far more consistent with negligence than with an intent to defraud or intentional dishonesty
for the purpose of personal gain.
____________________

304
Count IV of the indictment charged that respondent willfully signed his income tax return for the year
1978 knowing that it falsely understated his income for that year. The prosecution argued at the first trial that,
along with other unreported income, the 1978 return failed to report the alleged $30,000 bribe from Conforte.
See Rec. Pt. II, Vol. XV at 3561. As previously noted, the prosecution dismissed Count IV of the indictment
along with the remaining Conforte counts prior to the second trial. We further note in this regard that attorney R.
Paul Sorenson testified at the November hearing respecting respondent's tax returns. Mr. Sorenson holds both a
law degree and an accounting degree and is a Certified Public Accountant. Prior to the hearing in Las Vegas on
November 24, 1987, Mr. Sorenson advised the Chief Justice that he felt he possessed knowledge that could be of
significance at the hearing. After Sorenson briefly outlined his knowledge of the case, the Chief Justice
concluded that Sorenson's testimony at the hearing would be appropriate. See Nevada Code of Judicial Conduct
Canon 3A(4). Indeed, at the hearing, there were no objections to Sorenson's testimony. Sorenson explained that
in 1983, respondent had asked him to review respondent's tax returns for the years 1972 through 1980, and that
Sorenson prepared amended returns for respondent for the years 1977, 1978, and 1979. Further, Mr. Sorenson
stated that both the 1977 and 1978 returns had overstated respondent's taxable income and respondent had a
refund due from the IRS. See State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of
November 24, 1987, at 59-64. Thus, according to Mr. Sorenson, in 1978 respondent had overpaid his taxes.
Therefore, in the absence of Conforte's bribery accusations it appears that there was no basis whatsoever for
Count IV of the indictment.
104 Nev. 115, 221 (1988) State Bar of Nevada v. Claiborne
intentional dishonesty for the purpose of personal gain. Respondent's negligent inattention to
his tax obligations during the years in question, however, does adversely reflect on his fitness
to practice law. Accordingly, as we have noted, the conduct underlying these counts
establishes grounds for discipline.
Nevertheless, as in the Cochrane case, an important consideration is whether [t]here is . .
. a scintilla of evidence before us that [respondent] was derelict in any duties owed to, or
performed for, his clients. In re Cochrane, 92 Nev. at 255, 549 P.2d at 329. In the present
case, respondent's transgressions related solely to his personal tax obligations, and there have
been no allegations that respondent was ever derelict in his obligations as an attorney or as a
federal judge. In fact, the numerous witnesses who addressed this court at the hearing of
November 24, 1987, lauded respondent's contributions as a lawyer. For example, Marion
Earl, who until his recent death was the senior practicing attorney in Clark County and a
highly respected member of the bar, observed:
I do not excuse his carelessness and his negligence in the matter of his tax returns,
but I am strongly convinced that there were no wrongful intentions on his part.
I have known Harry Claiborne, Judge Harry Claiborne, since he first began his
practice of law here in 1947.
I have never known any attorney who worked harder at his chosen profession than
Judge Claiborne.
I join with my colleagues in feeling that he has been punished enough and has
suffered enough.
And on behalf of myself and my colleagues, I respectfully ask this honorable body to
season justice with mercy.
305

Similarly, attorney George Dickerson, a past president of the State Bar of Nevada and
member of its Board of Governors for twelve years stated:
Nobody in this room could tell you today that Harry Claiborne cannot handle the
process in behalf of individuals in our judicial system.
As a matter of fact, denying him that right may very well be depriving those to
whom we owe the duties to provide the best, the very best among us in the criminal
process. That's one aspect of this case for your consideration.
306

Attorney Edward G. Marshall, former District Attorney of Clark County, echoed these
sentiments by nothing that respondent: has always been, in my experience . . . a very skilled
adversary.
____________________

305
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
27-28.

306
Id. at 25.
104 Nev. 115, 222 (1988) State Bar of Nevada v. Claiborne
has always been, in my experience . . . a very skilled adversary. But not only that, he
has always been a fair man. He was always anxious and solicitous for the welfare of his
own clients. He always played by the rules of the game fairly. I never, at any time, saw
anything that would suggest to me that he was morally unfit.
307

Additionally, Neil Galatz, a past president of the Western Trial Lawyers' Association and a
member of the Nevada Trial Lawyers' Association, the Board of Governors of the American
Trial Lawyers' Association, and the Board of Directors of the International Academy of Trial
Lawyers, stated that Mr Claiborne has always, as a lawyer, conducted himself with the
utmost honor, outstanding courage and great talent.
308

State Senator Herbert Jones, a past president of the State Bar of Nevada, expressed the
view that if this community were deprived of the right to have [respondent] assist them with
their legal problems, that . . . would be a great loss to this community.
309
All of the
statements tendered by the remaining witnesses at the hearing expressed similar views
respecting respondent's dedication to the legal profession.
310

As set forth above, our independent review of respondent's professional background
corroborates the representations of the eminent and distinguished members of the public and
the bar who stated that respondent's continued practice of law will pose no threat to the
public's interest in a competent bar. Moreover, as we have observed, this proceeding is the
only instance during respondent's approximate forty-year membership in the Nevada Bar, in
which respondent's ethical fitness to practice law has been formally questioned in this court.
The conduct underlying respondent's violations of the disciplinary rules is unquestionably
isolated and atypical.
____________________

307
Id. at 37.

308
Id. at 39.

309
Id. at 42.

310
The remaining witnesses presented by respondent's counsel included William P. Curran, the
President-Elect of the State Bar of Nevada; George Foley, Sr., a distinguished former District Attorney of Clark
County; Paul C. Parraguirre, a former President of the State Bar of Nevada; Daniel M. Markoff, the Federal
Public Defender; Edward R. J. Kane, a former Chief Deputy District Attorney and Chief Assistant United States
Attorney for the District of Nevada and O. C. Lee, the head of the Las Vegas Metropolitan Police Protective
Association and President of the Nevada Conference of Police and Sheriffs. In addition, written statements were
placed in the record from Brian Greenspun, a member of the Nevada Bar and editor of the Las Vegas Sun;
William K. Woodburn, a past president of the State Bar of Nevada; and Claude Evans, the Executive
Secretary-Treasurer of Nevada A.F.L./C.I.O.
104 Nev. 115, 223 (1988) State Bar of Nevada v. Claiborne
isolated and atypical. This fact, in addition to respondent's long and distinguished career in
public and private practice, his contributions to the improvement of the administration of
justice and his exemplary record of pro bono representation, weigh heavily in mitigation of
his conduct. See Sloan v. State Bar, 102 Nev. 436, 443, 726 P.2d 330, 335 (1986) (suspension
of professional license inappropriate when isolated instance of negligent behavior is
committed); In re Francovich, 94 Nev. 104, 106, 575 P.2d 931, 932 (1978) (single incident of
misconduct, as opposed to a pattern of misconduct, weighs against suspension); In re Parks,
64 Nev. 478, 480, 184 P.2d 355, 356 (1947) (lack of prior disciplinary action considered
when imposing discipline).
311

Further, we observe that the parties to these proceedings have been afforded an equal
opportunity to call to our attention facts and circumstances in aggravation or mitigation of the
disciplinary sanction to be imposed in this case. As we have previously explained,
respondent's counsel tendered the voluminous record of the federal proceedings to the State
Bar. The Board was afforded an opportunity to review that record and to call to our attention
any further evidence relevant to these disciplinary proceedings. Unquestionably, it was within
the Board's authority to conduct such a review or to instruct Bar Counsel to do so.
Nonetheless, no aggravating circumstances reflecting upon the public impact of respondent's
continued practice were ever tendered by the State Bar for our consideration.
____________________

311
Our review of the authorities from other jurisdictions establishes that consideration of such mitigating
factors is clearly appropriate in disciplinary proceedings. See, e.g., Perloff v. Disciplinary Bd. of Ala. State Bare,
424 So.2d 1305, 1307 (Ala. 1982) (court reversed board's decision to disbar, considering as mitigating factors
attorney's long and distinguished career in private practice and the state legislature, and devotion of time and
energy to bar projects which improved the administration of justice); District of Columbia Bar v. Kleindienst,
345 A.2d 146, 148 (D.C. 1975) (attorney's previous, unblemished and laudable record in private practice and
public service is considered in determining discipline); Office of Disciplinary Counsel v. Eilberg, 441 A.2d
1193, 1197 (Pa. 1982) (lawyer's significant contributions while a public servant, his good character, high repute,
and fitness to practice law, notwithstanding his conviction, mitigate sanction); In re Walker, 364 N.E.2d 76, 78
(Ill. 1977) (exemplary public service background mitigates against sanction of suspension); Louisiana State Bar
Ass'n v. Marcal, 430 So.2d 47, 50 (La. 1983) (in refusing to disbar, court noted not only attorney's
post-conviction behavior, but his high integrity, dedication to the legal profession, acceptance of unpopular
cases, voluntary service to community organizations, groups and individuals, as well as his reputation as a
dedicated advocate whose work exemplified his thoroughness and preparation); State ex rel. Okl. Bar Ass'n v.
Hensley, 560 P.2d 567, 569 (Okla. 1977) (court considered attorney's previous record concerning professional
conduct in rejecting recommendation to disbar attorney); State v. Steger, 433 P.2d 225, 227 (Okla. 1966) (court
would be remiss in its duty if it did not carefully and thoughtfully consider an attorney's good character,
reputation and exemplary professional standing).
104 Nev. 115, 224 (1988) State Bar of Nevada v. Claiborne
public impact of respondent's continued practice were ever tendered by the State Bar for our
consideration. From our own independent, de novo review of what we consider to be an
adequate record, we conclude that there is ample basis for endorsing the consensus of the
eminent members of the bar and the public who spoke in mitigation of respondent's conduct
at the November hearing. Accordingly, we conclude that respondent's continued practice of
law will pose no threat to the interests of the public in a competent bar.
Nonetheless, our determination respecting the appropriate disciplinary sanction does not
end with the conclusion that the public's interest in a competent bar will not be endangered by
respondent's continued practice. As Bar Counsel has correctly observed, the purpose of
professional disciplinary proceedings is both to protect the public and also to maintain public
confidence in the bar as a whole.
312
In attempting to attain the latter objective, however, we
must carefully balance the need to protect the good name of the profession against the
retribution already exacted through the criminal justice system or otherwise. See Sloan v.
State Bar, 102 Nev. 436, 443, 726 P.2d 330, 335 (1986) (demands of justice were served
through punishment received through the criminal justice system); In re Ross, 99 Nev. 657,
660, 668 P.2d 1089, 1092 (1983) (court considered fact that attorneys had been subjected to
an extensive amount of improper, inflammatory, unfair and concerted public obloquy and
extra-legal torment in assessing retribution already exacted); In re Cochrane, 92 Nev. 253,
255, 549 P.2d 328, 329-30 (1976) (suspension or disbarment would be inappropriate because
it could only be construed as additional punishment); Flanders v. State Dep't of Commerce,
87 Nev. 303, 308-9, 486 P.2d 499, 502 (1971) (reversing order which affirmed revocation of
license of a real estate broker because no further punishment warranted where the demands of
justice had already been served); In re Reno, 57 Nev. 314, 330, 64 P.2d 1036, 1041 (1937)
(retribution previously exacted had satisfied the demands of justice); In re Winters, 40 Nev.
335, 337, 163 P. 244, 245 (1917) (good name of the profession must be maintained and those
guilty of professional misconduct should suffer consequences, but rights of an attorney must
not be sacrificed in an effort to maintain high standing of the bar).
[Headnote 5]
Our consideration of the retribution thus far exacted upon respondent, in mitigation of the
extent of discipline to be imposed, comports with the decisions of other courts faced with
the problem of attorney discipline.
____________________

312
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at 86
(emphasis added).
104 Nev. 115, 225 (1988) State Bar of Nevada v. Claiborne
imposed, comports with the decisions of other courts faced with the problem of attorney
discipline. For example, the case of In re Del Mauro, 341 A.2d 325 (N.J. 1975), concerned a
judge who, for a considerable period of time, received fees for performing marriage
ceremonies despite a court directive prohibiting such practice. Because of this misconduct,
the judge was suspended from the practice of law for one year. Subsequent to his
reinstatement, a federal indictment was returned against him charging him with two counts of
filing false tax returns, in violation of 26 U.S.C. 7206(1), for failing to report the improper
fees on his returns. He pleaded guilty to one count and served four months of a two-year jail
sentence. In proceedings to determine whether and to what extent additional discipline should
be imposed as a result of the federal conviction, the New Jersey Supreme Court concluded,
under the circumstances, that a short suspension was an appropriate sanction:
The question of punishment, as usual, is difficult. Respondent's conduct of course
requires discipline. It is true, however, that he has suffered much. He was compelled to
resign his judgeship under a cloud of obloquy. Thereafter he was suspended from the
practice of law for one year and later required to pay a substantial fine and to undergo a
custodial prison sentence. It is impossible, as it would be wrong, not to take account of
these successive instances of manifest personal disgrace and hardship with their
undoubted effect upon the respondent.
Id. at 326.
313

Similarly, in the instant case, we believe the principles of fairness, justice and equity, as
well as a proper application of strictly legal rules . . . demand our consideration of the
hardship, humiliation, personal disgrace, mental suffering and financial costs which
respondent has endured as a result of the federal proceedings against him.
____________________

313
See also Matter of Swartz, 630 P.2d 1020, 1026-27 (Ariz. 1981) (where evidence did not establish that
attorney violated a legal duty of disclosure because he was either incompetent, incapable or he sought to enrich
himself, and disciplinary proceedings had been pending for six years, censure rather than suspension was
appropriate sanction); In re Mekler, 406 A.2d 20, 25 (Del. 1979) (court considered fact that attorney sustained
substantial penalty in judgment rendered against him in civil litigation arising out of same facts and course of
conduct); In re Scott, 455 N.E.2d 81, 85-86 (Ill. 1983) (in light of evidence of attorney's past service as Attorney
General and State Treasurer, and the high caliber of his performance as a public official, and excellent reputation
for truth, veracity, and integrity both before and after his conviction, court refused to sanction attorney beyond
the two year interim suspension already served); Carter v. Cianci, 482 A.2d 1201, 1203 (R.I. 1984) (severe
sanction of loss of public office resulting from conviction mitigates against sanction of disbarment or
suspension); In re Hansen, 584 P.2d 805, 807 (Utah 1978) (the great amount of time, effort, expense, adverse
publicity and criticism, due in part to attorney's status as public official, is factor to be considered in mitigation).
104 Nev. 115, 226 (1988) State Bar of Nevada v. Claiborne
ship, humiliation, personal disgrace, mental suffering and financial costs which respondent
has endured as a result of the federal proceedings against him. See In re Pray, 64 Nev. 402,
411, 183 P.2d 627, 631 (1947).
In this context, we observe that respondent has suffered under a cloud of obloquy and
innuendo for nearly ten years, ever since it was disclosed to the press that he was under
investigation by a Las Vegas grand jury. He endured three additional grand jury investigations
and the accompanying publicity before he was finally indicted on seven felony counts, four of
which subsequently proved to be unfounded. Although the first trial ended in a mistrial and
the second trial proceeded only on those counts unrelated to Conforte's allegations,
respondent was put to the considerable expense during the first trial of defending against all
the charges including those lacking any substantial foundation. We deem it of considerable
significance that respondent evidently was subjected to the financial and emotional burdens
of defending against the unfounded Conforte allegations largely as a result of what appears to
have been a vendetta by a limited number of federal officials.
Moreover, following respondent's conviction in the second trial, he was assessed $10,000
in fines, over $14,000 in costs of prosecution and served seventeen months of a two-year
prison term. He has further been burdened with considerable costs relative to the
congressional impeachment proceedings. During much of his prison term, respondent was
deprived of the opportunity to earn a living in his chosen profession. Even after his release, he
voluntarily refrained from the practice of law until this court entered its order of November
25, 1987, allowing him to do so.
In addition, we observe that when respondent assumed the federal bench at the age of
sixty-one, he gave up a lucrative private practice and took a substantial reduction in salary.
Following his impeachment and the Senate trial, he forfeited his judicial salary, plus the
eventual prospect of substantial financial benefits and security respondent could have enjoyed
as a federal judge in senior status. See 28 U.S.C. 371 (1984).
314
Even without the precise
calculations that a professional actuarial evaluation would provide, we deem the loss of
these benefits to be of considerable consequence in the case of a seventy-year old
individual who has undoubtedly expended substantial resources in a legal battle spanning
almost a decade.
____________________

314
Under the provisions of 28 U.S.C. 371(a), (b) and (c), respondent would have had the option in the fall
of 1988, after serving ten years in office and attaining the age of 70, to retire from his office or to retain the
office but retire from regular active service. A federal judge who chooses to retire from office receives an
annual annuity during the remainder of his lifetime equal to the salary he was receiving at the time he retired.
See 28 U.S.C. 371(a). A federal judge who chooses to retain his office but retire from regular active service
receives the salary of the office during the remainder of his lifetime. See U.S.C. 371(b).
104 Nev. 115, 227 (1988) State Bar of Nevada v. Claiborne
without the precise calculations that a professional actuarial evaluation would provide, we
deem the loss of these benefits to be of considerable consequence in the case of a
seventy-year old individual who has undoubtedly expended substantial resources in a legal
battle spanning almost a decade. Under these circumstances, if this court were to deprive
respondent of the opportunity to earn a living at the only profession to which he has dedicated
his life, and at this stage of his life, the resulting hardship, in light of the isolated nature of his
professional derelictions, would be extreme and disproportionately severe. Such humanitarian
concerns have weighed heavily in our determination. See, e.g., In re Parks, 64 Nev. 478,
480-81, 184 P.2d 355, 356 (1947) (court took into account that attorney was sixty-nine, in ill
health and partly disabled, and that he may have been the victim of local bar association's
attempt to strike at the improper practices of another); In re Winters, 40 Nev. 335, 337, 163 P.
244, 245 (1917) (court considered the serious consequences of disciplinary action that could
deprive an attorney of the age of the individual there involved from earning a living for
himself and his family in the calling in which he was trained and for which he was
presumably best suited); Matter of Tapper, 477 N.Y.S.2d 16, 17 (N.Y. App. Div. 1984)
(where attorney was convicted of making a false written statement, court determined that a
lengthy suspension would result in severe deprivation in light of attorney's age, illness, and
fact that he was sole support for a dependent son and his personal problems had prevented
him from practicing for approximately one year).
As we have noted, the statement of Brian Greenspun was included in the record of this
court's November hearing. In light of Mr. Greenspun's perspective as an attorney, and as an
editor of the Las Vegas Sun, and although we are fully aware of the supportive stance that the
Las Vegas Sun has articulated throughout respondent's trials, we consider his observations
regarding the public's perception of this matter with some deference. In this regard, Brian
Greenspun stated:
On this issue, I can report an overwhelming belief among the people from whom I
have heard that Claiborne has been punished enough.
From the precedential standpoint, it is clear that others who have been convicted of
similar offenses spent little, if any, time in prison and were allowed to practice their
profession, benefiting not only themselves and their families but their clients as well.
Clearly, not one of them has been impeached on national television in front of
millions of Americans. Suffering the ultimate humiliation by being stripped naked of
high judicial office in front of his fellow countrymen, having to serve the fullest
extent of a prison sentence, being denied any form of early release or parole, and
having to return to a community which once held you in high esteem as a federal
judge and a respected defense attorney, has provided Harry Claiborne with a degree
of ignominy heretofore unmatched in legal history.
104 Nev. 115, 228 (1988) State Bar of Nevada v. Claiborne
office in front of his fellow countrymen, having to serve the fullest extent of a prison
sentence, being denied any form of early release or parole, and having to return to a
community which once held you in high esteem as a federal judge and a respected
defense attorney, has provided Harry Claiborne with a degree of ignominy heretofore
unmatched in legal history.
The public sentiment I have heard, and which I report to you today, is that to strip
the last vestiges of dignity from Harry Claiborne by refusing to allow him to earn a
living in a profession to which he has brought honor throughout his adult life is
unnecessary and cruel and is not in keeping with the level of tolerance for human frailty
for which Nevadans have become known and envied.
315

We also take note of the statement of Claude Evans, the Executive Secretary-Treasurer of
the A.F.L./C.I.O. in Nevada, which was submitted for our consideration at the November
hearing. Mr. Evans observed in part:
We in organized labor feel strongly that Mr. Claiborne deserves the opportunity to
continue to earn his living in his chosen profession.
. . .
We feel that he has paid his penalty to society, if, indeed, he owed one, and should
not continue to be persecuted and denied the right to continue in his profession.
316

We have given appropriate consideration to these expressions of the public's sentiment in
assessing the impact of our decision upon the public's confidence in the legal profession in
this state.
As many of the speakers at the November hearing urged, we have also given appropriate
consideration to the punitive impact upon respondent of the congressional proceedings. As
attorney George Foley, Sr., observed, respondent had the terrible punishment of going before
this nation on television, and when the United States Senator of his own state went to shake
his hand, he was shoved aside by United States Marshals.
317

It is indeed of no little significance that respondent endured the ignominy of being the first
federal judge in over fifty years to be impeached and removed from office. No less significant
is the fact that respected United States Senators have expressed the belief that although the
unprecedented procedural rules employed during the Claiborne impeachment trial may
have comported with constitutional standards vesting each body of Congress with the
authority to determine its own rules, those unprecedented procedures, and perhaps the
press of Senate business as Congress rushed to complete its agenda before an election
year adjournment, may well have denied respondent the full, fair, and meaningful hearing
the Senate historically has accorded to others in respondent's position.
____________________

315
State Bar v. Claiborne, Docket No. 17294, Reporter's Transcript of Hearing of November 24, 1987, at
69-70.

316
Id. at 73-74.

317
Id. at 45.
104 Nev. 115, 229 (1988) State Bar of Nevada v. Claiborne
belief that although the unprecedented procedural rules employed during the Claiborne
impeachment trial may have comported with constitutional standards vesting each body of
Congress with the authority to determine its own rules, those unprecedented procedures, and
perhaps the press of Senate business as Congress rushed to complete its agenda before an
election year adjournment, may well have denied respondent the full, fair, and meaningful
hearing the Senate historically has accorded to others in respondent's position.
In reaching our determination, we have further carefully considered the substantial
indications that adverse special and selective investigative, prosecutorial, trial, and appellate
procedures were imposed on respondent throughout the proceedings against him. This overall
appearance of impropriety, as defined in part by Judge Reinhardt, has influenced our
decision not only in terms of the weight which we have accorded respondent's federal
conviction for the purposes of these disciplinary proceedings, but also in terms of the
substantial mental anguish that respondent has thus far endured.
Additionally, we note that a review of similar attorney disciplinary cases in this
jurisdiction reveals that respondent may have already suffered more retribution than the
combined criminal and disciplinary sanctions previously imposed upon any individual
member of the Bar convicted of a similar tax offense. In the Cochrane case for example, it
does not appear that Cochrane suffered any imprisonment as a result of his income tax
conviction, nor did this court impose suspension or disbarment. This court did, however,
impose monetary sanctions upon Cochrane in an amount less than $4000. A review of this
court's files also reveals an unreported case involving an attorney who was convicted of
income tax evasion and fined $10,000, pursuant to a plea of nolo contendere. The attorney did
not receive a sentence of imprisonment. Upon the recommendation of the Board of Bar
Governors, this court suspended him from the practice of law for six months. See Order No.
6214, filed October 12, 1970. He lost no position and was not subjected to any comparable
humiliation, stress, or public obloquy, and never served time in prison.
Finally, we have given serious consideration to the eloquent observation of Marion Earl
who reminded us that [t]he quality of mercy is not strained, and respectfully requested that
we season justice with mercy in behalf of Judge Harry Claiborne.
318
In light of the
magnitude of the hardship and retribution that respondent has endured, we consider Mr. Earl's
eloquent plea particularly meaningful.
____________________

318
Id. at 28-29.
104 Nev. 115, 230 (1988) State Bar of Nevada v. Claiborne
In the final analysis, after a careful review of the massive record before us and the
principles of law applicable to attorney discipline, we have concluded that the imposition of
additional sanctions upon respondent would serve no proper purpose and could only be
construed as additional punishment. See In re Cochrane, supra. In our view, the magnitude of
the retribution heretofore exacted from respondent has satisfied the demands of justice and
has adequately insured against any repetition of the attorney misconduct revealed by our
review of the facts. See Sloan v. State Bar, 102 Nev. at 443, 726 P.2d at 335; In re Ross, 99
Nev. 657, 668 P.2d 1089 (1983); see also Flanders v. State Dep't of Commerce, 87 Nev. 303,
486 P.2d 499 (1971); In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937).
VI. CONCLUSION
[Headnote 6]
Harry Eugene Claiborne will forever remain an historical enigma. If our review of the
record had enabled us to conclude, in good conscience, that Claiborne had been fairly
prosecuted and convicted, we unhesitatingly would have imposed severe sanctions given the
position of high judicial office and public trust he enjoyed at the time of his conviction.
Accordingly, we do not fault those who, however precipitously, criticize us for having
apparently diminished the magnitude of a criminal conviction sustained by one of our own.
319
Indeed, we have not been unmindful of the fact that countless numbers of citizens will not
have or take the opportunity to study and ponder seriously what has occurred beyond the
headlines respecting respondent's prosecution, conviction, and removal from office, and our
ultimate disposition of the disciplinary proceeding. Thus, we are admittedly troubled by the
prospect that this court's motives and actions may be perpetually misunderstood to the
detriment of our judicial and legal system in Nevada. We are equally sensitive to the views of
some non-Nevadans who, with an existing disdain for gaming and legalized prostitution, may
simply conclude that our decision was consistent with their perceptions of the moral
atmosphere of our state. We thus understand that there are undoubtedly those within and
without the bar, the judiciary, and this state who would exact of Harry Eugene Claiborne
"the uttermost farthing."
____________________

319
For example, an editorial in the National Law Journal, December 14, 1987 edition, declared: The fact
that Mr. Claiborne is again a lawyer in good standing is a perfect example of lawyers protecting their own. It
never should have happened. See Claiborne Found Fit to Practice Law in Nevada, National Law Journal,
December 14, 1987. Each of us received a letter from a law student expressing outrage over our decision not to
subject Claiborne to further punishment, and decrying our gutter ethics as the source of Claiborne's relief.
104 Nev. 115, 231 (1988) State Bar of Nevada v. Claiborne
this state who would exact of Harry Eugene Claiborne the uttermost farthing. We would
join them if we could ignore what the record reveals about his conviction. We would join
them if we could cast aside what we must recognize as sound legal precedents. We may have
joined them if we could have simply cast stones at him without considering the human
frailties that permeate all aspects and all sides of this case. And perhaps we could have joined
them if we had disregarded the spirit of our procedural rules and merely followed the
recommendation of a disciplinary board ill-equipped to provide an in-depth review of the
record.
The most difficult of the issues before us concerns the tension between public perceptions
of the integrity of the judiciary and the bar on the one hand, and individual justice to Harry
Claiborne on the other. Ultimately, we concluded that if the cherished values of individual
dignity and due process of law are to have any real meaning, our course was clear. In that
regard, we do not imply that respondent has been denied a form of due process. Our concerns
relate to the quality of the due process he received. Although we can readily appreciate the
need to remove corrupt judges from office, and certainly the machinery and will exists for so
doing, it nevertheless is essential to even-handed justice that he or she to whom the task of
assuring that due process prevails in our courtrooms, may also feel secure in the benefits
thereof when involved in the process as a criminal defendant.
Similarly, in this nation's highest traditions of deference to human dignity, we have
accorded a presumption of innocence to those accused of a crime. From the record, we are
forced to question whether that presumption was ever meaningfully enjoyed by respondent.
And yet, we emphatically declare that our decision has not been, to any extent, based upon
what are popularly referred to as legal technicalities. Hence, by way of illustration, we have
paid not the slightest attention to respondent's allegations that his residence was unlawfully
entered by or at the behest of federal agents to secure information useful to the prosecution.
320
When it comes to a judicial officer, proof of guilt, however obtained, would have to be
considered in a disciplinary proceeding; maintaining public confidence in the bench and bar
would demand no less.
Harry Claiborne, to this date, remains a convicted felon. It has been neither the nature of
this proceeding nor our jurisdictional prerogative to alter that status. Any relief to which
respondent may be entitled in that regard must be sought through the federal system that
produced the conviction.
____________________

320
Rec. Pt. I, Vol. VIII, Pleading No. 81; Rec. Pt. I, Vol. IX, Pleading No. 105.
104 Nev. 115, 232 (1988) State Bar of Nevada v. Claiborne
system that produced the conviction. We, of course, have no way of knowing whether
Claiborne is innocent or guilty of the charges that eventually caused his downfall. We have
therefore brought to bear our combined efforts and resources to analyze fairly and thoroughly
the large record in an attempt to responsibly uphold our duty to dispense justice. There will be
those who will objectively and patiently track the slow pace of this lengthy opinion and still
honestly conclude that we arrived at the wrong destination. There may also be those who will
agree that our conclusions are just, but nevertheless feel that respondent should be sacrificed
on the altar of ongoing respect for public perceptions of the integrity of the bench and bar.
321
And inevitably there will be those who, in their harsh and precise judgment will prove anew
the truth of George Herbert's observation that the ignorant hath an eagle's wings and an owl's
eyes. Neither this court, nor respondent, nor any other earthly source can disabuse those in
the latter category; we would prefer that it were otherwise, for it would greatly serve the
principles underlying this opinion, as well as future discourse on improving the
administration of justice.
In summary, we wish to stress that our disposition of this matter should in no manner be
construed to diminish the significance and the consequences which ordinarily are accorded to
an attorney's conviction of a serious crime. See SCR 111. As we have endeavored to set forth
above, however, this was no ordinary conviction. Questionable investigative and
prosecutorial motivations, as well as anomalous and arguably unfair practices and procedures,
pervade the record of this matter from its inception. Indeed, the very procedures utilized by
this court in resolving the issues at hand have been the subject of much recent discussion in
the press and among the members of the bar. We are cognizant of the fact that regardless of
our ultimate disposition of this case, its controversial nature and the widespread public
attention which it has engendered will inevitably result in further public debate. Accordingly,
in an attempt to insure that such debate, regardless of its focus, may be informed, based upon
fact rather than anonymous speculation, we have endeavored to set forth in detail the
manner in which this matter came before us, the procedures we employed in resolving the
factual and legal issues presented and the underlying facts and legal rationale which led
to our ultimate conclusion.
____________________

321
Such feelings would not be without some justification. It is clear that respondent, as a sitting federal
judge, was both intemperate and provocative in his comments to the press concerning the integrity and character
of federal agents assigned to the task of bringing criminal elements to justice in Nevada. See textual discussion,
page 19, supra, including the footnoted material therein. Hence, the contention is not totally without reason that
respondent invited the treatment he received and that he, rather than the bench and bar, should suffer the
consequences of the vendetta provoked by his intemperate public statements. Again, we may have had some
sympathy for that view if the record had reflected a true and fair path from the point of agitation through
respondent's conviction and impeachment.
104 Nev. 115, 233 (1988) State Bar of Nevada v. Claiborne
rather than anonymous speculation, we have endeavored to set forth in detail the manner in
which this matter came before us, the procedures we employed in resolving the factual and
legal issues presented and the underlying facts and legal rationale which led to our ultimate
conclusion. In so doing we are hopeful that the public and the bar will come to understand
that we acted in accordance with well-established and frequently stated principles of law
pertinent to professional disciplinary proceedings.
In light of the above, we decline to impose additional punishment upon respondent
Claiborne by way of professional discipline, and we hereby dismiss these disciplinary
proceedings.
322

Young and Springer, JJ., concur.
____________________

322
Pursuant to the request of respondent's counsel, The Honorable John C. Mowbray, Justice, recused
himself from consideration of this case. Nev. Const. art. 6, 4.
104 Nev. 115, 234 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #1
(See book) EXHIBIT #2
EXHIBIT #2
104 Nev. 115, 235 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #2
(See book) EXHIBIT #3
EXHIBIT #3
104 Nev. 115, 236 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #3
(See book) EXHIBIT #3 cont.
104 Nev. 115, 237 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #3 cont.
(See book) EXHIBIT #4
EXHIBIT #4
104 Nev. 115, 238 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #4
(See book) EXHIBIT #4 cont.
104 Nev. 115, 239 (1988) State Bar of Nevada v. Claiborne
EXHIBIT #4 cont.
(See book) Gunderson, C. J., concurring:
104 Nev. 115, 240 (1988) State Bar of Nevada v. Claiborne
Gunderson, C. J., concurring:
I applaud our brother Steffen's conscientious and scholarly effort to provide for history an
organized and documented recitation of the sequence of facts involved in the years-long
pursuit of Judge Claiborne, the prosecutions of Judge Claiborne and various others, and the
eventual conviction and impeachment of Judge Claiborne himself.
Nonetheless, this court cannot hope to proveby hundreds of citations to the many
thousands of pages contained in the record before usthat we have arrived at the final,
complete, and ultimate truth concerning the Claiborne saga. Nor can we hope to validate, to
the satisfaction of everyone, that we are correct in deciding that the 71-year-old respondent
has at long last suffered enough. I would hope, however, that through Justice Steffen's careful
and measured exposition of the historical background, it will be demonstrated, to
open-minded folk at least, that there are principled basesboth in fact and in lawfor our
conclusion that he should not be punished further.
There is a venerable allegorical tale about three sightless mendicants who sensed an
elephant passing by them, and who each reached out a hand and touched a different part of
his anatomy. One beggar, who contacted the pachyderm's leg, pronounced it confidently to be
a tree. Another, who encountered the beast's side, felt himself without question to be facing a
wall. And the third, who grasped the animal's trunk, believed beyond any doubt that he had
taken hold of a great snake. Each stated his own view with certitude, and wondered what evil
demons had possessed his fellows and impelled them to announce their obviously false and
groundless claims. A heated dispute ensued between the beggars. All accused the others of
being fools and liars; no agreement was ever reached.
As experienced by many, discussions of the Claiborne case almost certainly will be
destined for a similar fate. The pursuit, the trials, the conviction, and the impeachment of
Judge Claiborne has generated an elephantine body of data, from which diverse inferences
and conclusions can be drawnperhaps even by someone who carefully evaluates the data.
And, although most of those data are available in the huge record lodged with this court's
clerk here in Carson City, the public neither has any practical access to the record, nor the
time and training to sift and weigh its contents. One might argue that, in the interest of our
country, the press as the public's surrogate should undertake to analyze the record carefully on
behalf of the citizenry. Certainly, as Justice Steffen's efforts demonstrate, its contents reveal a
taleindeed, several talesworth telling.
104 Nev. 115, 241 (1988) State Bar of Nevada v. Claiborne
I am informed by this court's staff, however, that except for the few token passing glances,
no one from outside the courtjournalist, lawyer, or lay personhas sought to look at the
record at all. There are those who justify their unwillingness to address or assess the facts by
professing to believenotwithstanding the fact that Judge Claiborne was wrongly pursued
for years on a series of baseless chargesthat the only fact now of importance is that the
government ultimately managed to convict him, on very tenuous evidence, of filing false tax
returns. Well, let anyone who so desires start and end his or her personal thought processes
with that one fact. If the pachyderm's tailthe convictionis all such persons wish to
consider, so be it! I will concede such persons the right to their opinionsalthough, as
Bernard Baruch once opined, I tend to think no one is entitled to be wrong or ignorant about
the facts.
In regard to such persons' notions of what the law should be, I can only respondbased on
the authorities cited in our brother Steffen's opinionthat under the established law of this
state, and of many other jurisdictions for that matter, our court clearly has had a more
expansive and more difficult duty to fulfill than merely to notice that Judge Claiborne was
ultimately convicted of a federal offense. And it does seem to me, franklyafter so many
laws and rules have been ignored and altered throughout the federal system in the long
process of achieving Judge Claiborne's conviction and impeachmentthat the man should at
least be entitled now to have this court adhere with fidelity to our prior precedents: precedents
which clearly dictate that we should evaluate all mitigating factors in the course of deciding
whether or not, as a further and collateral consequence of his conviction, to strip away this
elderly man's only remaining means of earning a livelihood.
If each member of this court were to set forth all of his thoughts about this case, I think we
would probably quadruple the length of Justice Steffen's opinion. I, for example, am just as
astounded as the Reno Gazette-Journal has been over the bargain government agents struck
with a multiply-convicted brothel owner, and I hereby adopt that newspaper's comments by
reference. See Reno Gazette-Journal, June 29, 1984, Conforte Reels in Some Mighty Big
Suckers, at 21A. I consider the editorial just cited to be as relevant today as when it was
written, because the Gazette-Journal set forth a very cogent picture of how and why the
prosecution of Judge Claiborne was initiated and pursued. In the crucial area covered by the
editorial, I could not present my thoughts nearly so lucidly, although I would attempt to be
less strident. The Gazette-Journal stated: The Justice Department and the FBI were so
incensed at Judge Claiborne that the need for revenge blinded them to everything but one
burning desire.
104 Nev. 115, 242 (1988) State Bar of Nevada v. Claiborne
The Justice Department and the FBI were so incensed at Judge Claiborne that the need
for revenge blinded them to everything but one burning desire. The federal government
could not rest after Claiborne denounced its Strike Force lawyers as rotten bastards
and crooks and liars. It could not bear Claiborne's other insinuations without
retaliating.
So it dug and dug, and when Conforte put out his bait, the government swallowed it
right up to the fishing pole.
I have discovered nothing in the record that does not support the Gazette-Journal's further
observation that agents of the government were too busy with retaliation to bother with
facts. However, I would notas the Gazette-Journal seems tocondemn all representatives
of the Justice Department and the FBI. I believe that the vendetta the newspaper described
was pursued by only a limited number of agents, one of whom (Yablonsky) has since exited
both his office and Nevada under a cloud of charges that related to misuse of his office and to
apparent expropriation of a large sum of money belonging to a bank. As to other dubious
prosecutorial behavior that has been revealedfor just one example, the persecution of
respected Nevada IRS Director Gerald SwansonI join Justice Steffen in hoping the same
did not result from a knowing vendetta by the Justice Department or FBI, but from the
indiscretions of a small group of people. I believe the management of the Gazette-Journal
must understand the reason that better men, higher in government, tolerated the abuses was
because the targeted judge had traversed the important principle of political science that the
Gazette-Journal implicitly recognized in its editorial. That is, if members of a group are
criticized and embarrassed, cohesion tends to develop among all of its members, and this
tends to be particularly true when the criticism is harsh and directed toward the group as a
whole.
In any case, in our brother Steffen's effort to apply the law to the evidence in the record, he
has alluded to the foregoing and to most of the other significant facts and ideas that have
occurred to me while studying this record. Also, to the extent they have relevance to the case
before us, Justice Steffen has touched upon the more important considerations which repel
certain unfair allegations anonymous sources have tendered to the media concerning
procedural aspects of the handling of this caseallegations that never have been raised as
issues by Bar Counselbut which the sources, by distorting facts, have attempted to
convince the media should be deemed burning concerns nonetheless.
104 Nev. 115, 243 (1988) State Bar of Nevada v. Claiborne
As tempted as I am to do so, I will therefore not enlarge extensively upon Justice Steffen's
work in order to repel spurious non-issues which have been raised to the press by bar
sources but never by Bar Counsel. Issues not preserved for our consideration, either by
objection or by motion of counsel, are not normally considered by this court.
1
Thus, the
attacks launched through the media by anonymous bar sources, which concern notions
never tendered to this court as issues by Bar Counsel, either contemporaneously or at all,
should be considered no proper part of the case before us.
Before concluding, I want to mention that I have now served nearly 18 years on this court,
which is vested with the solemn task of providing a final resolution for the most hotly
debated issues which arise in our courts. Members of this court now must gird themselves to
decide more than four cases per judicial day. This does not leave unlimited time to reflect.
This court is no longer the relaxed, contemplative environment law students envision when
they think of O. W. Holmes, Jr., and Learned Hand, and, to anyone who suggests our
decisions are sometimes flawed by the imperatives of haste, I must acknowledge my fear that
this is true. I do not believe such a thing occurred in the instant case, however.
In the time I have served here, I have participated in the determination of over 12,000
cases, involving some 30-thousand or so litigants plus their attorneys. For every successful
litigant, there is a loser. In the nature of things, at least half or more of them must go away
dissatisfied with our judgmentssometimes desperately so. And, in cases with a high public
profile, such as this one, the number of the general public who will be disappointed,
disgruntled, or incensed necessarily increases quite markedly. In my time, few matters have
possessed as much potential for sharply dividing public opinion as the case before us.
Unfortunately, in matters as controversial as this one, citizens who find their wishes have not
prevailed tend to vent their frustrations in personal, ad hominem attacks against this court.
____________________

1
See Trustees, Carpenters v. Better Building Co., 101 Nev. 742, 743, 710 P.2d 1379, 1381 (1985) (in
absence of objection, point not considered on appeal); Whalen v. State of Nevada, 100 Nev. 192, 194, 679 P.2d
248, 250 (1984) (objection to allegedly incompetent evidence is necessary, or court will accept same as
admissible); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (point not
contemporaneously urged is deemed waived); Diversified Capital v. City of N. Las Vegas, 95 Nev. 15, 19 n.4,
590 P.2d 146, 148 n.4 (1979) (appellant without standing to assert master's failure to make a record, since no
request made); Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 659, 557 P.2d 273, 275 (1976) (absent objection to
testimony, point not later considered by this court).
104 Nev. 115, 244 (1988) State Bar of Nevada v. Claiborne
As one example of this kind of reaction, I wish to note that, apparently on the basis of
anonymous sources, who could have nothing substantial to back up their claims, it has
repeatedly been printed as a fact that I am a close friend of Judge Claiborne. Without
belaboring the point, I believe such an appellation totally mischaracterizes my past
associations with the respondent herein. The Recorder, a San Francisco legal newspaper
which has reported on this matter with more objectivity than some, quoted legal ethicist
Charles W. Wolfram, a Cornell University law professor, as characterizing my acquaintance
with Judge Claiborne as not shocking at all and almost to be expected in such a small legal
communityespecially when both Gunderson and Claiborne are two of its best known
figures. The Recorder, Apr. 4, 1988, at 18. In any case, Bar Counsel knew that I believed I
should not disqualify myself, and he never saw fit to raise the question by tendering any
motion for my disqualification, in the manner provided by law.
In my view, I was not disqualified to sit either because of my fictive closeness to Judge
Claiborne, or because I had testified under subpoena as a fact witness in his first trial, about
matters which later neither remained at issue nor were subject to any question. Obviously, I
could have taken the easy way out by disqualifying myself. But under Nevada law, I had a
positive obligation not to disqualify myself as to matters concerning which I did not believe
myself disqualified. Now, of course, a judge's own views on the subject of his disqualification
are not the final authority. Under Nevada statutes, counsel for either side may question the
judge's assessment of such an issue by formal motion. If Bar Counsel had done so, of course,
I would have been afforded a chance to present my views in a public hearing, held openly
pursuant to NRS 1.225(4). No motion for disqualification has ever been filed.
2

Again, another media outlet has printed speculationsaltogether without basis and
contrary to factthat this court has been "dragging its feet" in regard to producing an
opinion in this matter.
____________________

2
In this regard, I refer particularly to the case of Ham v. District Court, 93 Nev. 409, 566 P.2d 420 (1977), in
which the Supreme Court of Nevada issued a writ of prohibition to prevent a judge from disqualifying himself
voluntarily in a case when, in so doing, he had stated he felt there was no cause for him to do so. In other words,
this court held that a judge is not free to disqualify himself voluntarily, without good cause, thereby shirking
over to another judge his own obligations in a contentious or difficult matter. If he does not deem himself
disqualified, the judge has a duty under Nevada law to continue presiding, unless and until he is removed by
other authority.
The aforedescribed concept, which has been called the duty to sit doctrine, is not peculiar to Nevada law.
It is also recognized by federal courts and, in fact, Judge Walter Hoffman referred to the doctrine in denying
requests for his disqualification. See, e.g., Rec. Pt. I, Vol. VI, Pleading No. 56.
104 Nev. 115, 245 (1988) State Bar of Nevada v. Claiborne
been dragging its feet in regard to producing an opinion in this matter. Quite to the
contrary, as I believe Justice Steffen's opinion makes obvious, we have given a maximum
effort and priority to trying to satisfy the demands of history for a full and documented
analysis of the pertinent facts and the relevant law. The problem in formulating an opinion in
this matter has not been that supporting data are sparse, as it has been hypothesized, but that
they are so many.
And to take a final example, another media outlet has gone so far as to suggest to its
readerswithout any facts to justify the notion, of coursethat the members of this court
perhaps think of Harry Claiborne as a hero. Well, I do not regard Judge Claiborne as a hero;
nor do I know anyone on this court who does. Certainly, Judge Claiborne acted precipitously
by the manner in which he retaliated verbally against his tormentors; he was at least negligent
in handling his personal affairs; he thereby left himself vulnerableand he has paid a terrible
price for these lapses.
Yet, while I certainly would not seek to tender Judge Claiborne to the world as a hero, I
will suggest that if the man had been a quitterhad he capitulated, rolled over as the saying
goes in courthouse circlesso that the background facts of his pursuit and prosecution
remained forever obscured, it could have been extremely unfortunate for the American bench
and bar. Indeed, it could have been most unfortunate for America. One of the greatest
bulwarks for freedom in this country is our independent, life-tenured federal judiciary. It is
vitally important, therefore, for the notion never to gain credence that a United States District
Court judge can easily be targeted, discredited and destroyed. Whenever such an effort to
discredit and destroy a federal judge is undertaken, I think it is essential that any suspect facts
concerning the undertaking shall be made known. Hence, through Judge Claiborne's
stubbornnessI will not say whether his resistance should be call courageI suggest that he
has impelled, and is impelling, an important examination of the processes by which his
indictment, conviction and impeachment were achieved.
While I suppose anonymous sources may castigate me for even tendering it, I will close
by offering the idea that, because the independence of the federal judiciary is so important, it
may be fortunate for our country's system of checks and balances that the targeting and
pursuit of the United States District Court judge herein question has not ended with his total
annihilation. There is no doubt whatever that pursuit began with a fixed purposebut
without any evidence whateverthat the United States District Court judge should be
destroyed. The pursuit was totally goal-oriented toward that end. The notion of tax charges
had not even been dreamed of, when the effort began to find something to justify a
prosecution, any prosecutionl
104 Nev. 115, 246 (1988) State Bar of Nevada v. Claiborne
even been dreamed of, when the effort began to find something to justify a prosecution, any
prosecution!
And when the pursuit ended, it did not culminate with any clear affirmation of the premise
on which it startednamely, that the United States District Court judge was corruptbut,
rather, it ended with a collection of data that, as Senator Orrin Hatch cogently argued, is more
consistent with a finding of mere negligence than with any inference of criminal culpability.
In these circumstances, I concur in the majority's conclusion that the final denouement of this
unfortunate episode in American history should not be the total and complete destruction of
the judge as a human being and as a productive citizen.
____________
104 Nev. 246, 246 (1988) Harris v. State
In the Matter of the CRIMINAL CASE OF: RUPERT HARRIS and RALPH TROISI,
PONDEROSA INSURANCE COMPANY and A-1 BAIL BONDS, SURETIES FOR
RUPERT HARRIS, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 18333
June 24, 1988 756 P.2d 556
Appeal from order of district court upholding the forfeiture of a bail bond. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Sureties on bail bond for criminal defendant who did not appear moved to set aside
forfeiture. The district court denied the motion. Sureties appealed. The Supreme Court held
that the fact that affidavit of mailing did not accompany notice of intent to forfeit bond did
not preclude forfeiture where sureties received actual notice.
Affirmed.
Carmine J. Colucci, Las Vegas, for Appellants.
Rex Bell, District Attorney, Mitchell M. Cohen, Deputy District Attorney, Clark County,
for Respondent.
Bail.
That affidavit of mailing did not accompany notice of intent to forfeit bail bond, as required by statute,
did not preclude forfeiture of bond, where sureties received actual notice of intent to forfeit bond and were
not prejudiced. NRS 178.508.
104 Nev. 246, 247 (1988) Harris v. State
OPINION
Per Curiam:
Appellants, sureties for the defendant Rupert Harris, were forced to make payment to
respondent, the State of Nevada, on Harris' forfeited bail bond when he failed to appear for
trial in August, 1985. Appellants claim the district court erred in denying their motion to set
aside the forfeiture. The motion was premised on noncompliance with NRS 178.508. An
affidavit of mailing did not accompany the Notice of Intent to Forfeit, as required by the
statute.
1
Appellants alleged no other grounds for setting aside the forfeiture.
Appellants concede that they received actual notice of the intent to forfeit the bond and
were not prejudiced by the lack of compliance with NRS 178.508. Where there is actual
notice, lack of prejudice, and substantial compliance with the statute, a district court's order
forfeiting a bail bond will not be reversed. However, we do not condone the district court's
failure to comply with the requirements of NRS 178.508. Forfeitures are not favored at law,
and statutes imposing them must be strictly construed. Wilshire Insurance Co. v. State, 94
Nev. 546, 582 P.2d 372 (1978). While Wilshire did not concern the technical requirements of
an affidavit of mailing, the reasoning is valid. We hold that district courts must adhere to the
provisions of NRS 178.508; an affidavit of mailing shall accompany the notice of intent to
forfeit a bond, as the language of the statute requires.
In this case, appellants were not prejudiced. Accordingly, we affirm the order of the
district court.
____________________

1
NRS 178.508 provides:
If the defendant fails to appear when his presence in court is lawfully required and not excused, the court
shall direct the fact of such failure to appear to be entered upon its minutes. If the undertaking exceeds
$50 or money deposited instead of bail bond exceeds $500, the court shall direct that the sureties and the
local agent of each surety, or the depositor if he is not the defendant, be given notice that the defendant
has failed to appear, by certified mail within 15 days after the failure to appear, and shall execute an
affidavit of mailing to be kept as an official public record of the court. The undertaking or money instead
of bail bond is forfeited upon the expiration of 90 days after the notice is mailed, except as otherwise
provided in NRS 178.509. A copy of the notice must be transmitted to the district attorney at the time
notice is given to the sureties or the depositor. (Emphasis added.)
____________
104 Nev. 248, 248 (1988) Nau v. Sellman
PAUL E. NAU, JR., Appellant, v. NORMAN G. SELLMAN and JACQUELINE
McMONAGLE, Respondents.
No. 18606
June 24, 1988 757 P.2d 358
Appeal from judgment in a tort action. Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Vendor sued purchasers of land for false arrest and negligent infliction of emotional
distress. Purchasers counterclaimed for fraud. The district court returned a verdict in favor of
purchasers and awarded damages. Vendor appealed. The Supreme Court held that: (1) there
was no evidence to support jury finding that vendor defrauded purchasers, and (2) vendor
failed to show that purchasers had misrepresented or neglected to provide any material
information in their report to police officer so as to be liable for false arrest.
Reversed in part, affirmed in part.
Richard F. Cornell, Reno, for Appellant.
Ohlson, Edmiston and Aimar, and Mary K. Bickett, Reno, for Respondents:
1. Vendor and Purchaser.
To prove fraud, purchaser needs to show that vendor made false representation, that vendor knew of
falsity at time of representation, that vendor made false representation with intent to induce sale through
reliance on misrepresentation, that purchaser justifiably relied on misrepresentation, and that purchaser
suffered damages as result of his reliance.
2. Vendor and Purchaser.
There was no substantial evidence to support jury's finding that vendor misrepresented foundation of
home as legal, when in fact it both extended into set back area and was out of square.
3. Evidence.
In suit for false arrest and negligent infliction of emotional distress, testimony of chief deputy district
attorney that, in his opinion, plaintiff was guilty of grand larceny and, judging by plaintiff's demeanor at
preliminary hearing, plaintiff acted like guilty party, was improper; testimony was tantamount to opinion
that defendant was not liable for false arrest.
4. False Imprisonment.
In order to prove false arrest, plaintiff must show defendant instigated or effected an unlawful arrest.
5. False Imprisonment.
Vendor failed to show that purchasers misrepresented or neglected to provide any material information in
their report to police officer about circumstances surrounding firewood allegedly stolen by vendor, so as to
sustain claim of false arrest, where purchasers accurately and fully reported their personal
knowledge about loss to police officer under good-faith belief that firewood was
theirs and was wrongfully taken, and purchasers left decision whether to instigate
charges up to police and district attorney's office.
104 Nev. 248, 249 (1988) Nau v. Sellman
reported their personal knowledge about loss to police officer under good-faith belief that firewood was
theirs and was wrongfully taken, and purchasers left decision whether to instigate charges up to police and
district attorney's office.
OPINION
Per Curiam:
The Facts
Appellant Nau, a real estate appraiser and broker, owned a lot in Incline Village on which
he had constructed a house foundation. In 1980, he sold this lot to respondents Sellman and
McMonagle. The lot, at the time of sale, contained some trusses, a garage door, assorted
construction lumber, as well as severed timber, some of which Nau had chopped for
firewood. There was no mention of the timber or firewood in the sales and escrow agreements
between the parties. The parties disagreed, at trial, as to what oral agreement about the
firewood, if any, was reached at or before the time of sale.
1

Four years after the sales transaction, Nau, apparently acting under the belief that the
firewood was still his personal property, returned to Sellman's lot, on which in the interim
Sellman had constructed a house. Nau noticed that some of the wood, which previously had
been there, was missing. Nau knocked on Sellman's door, but Sellman was not there at the
time. Nau then spoke with a next door neighbor, Janice Jackson. Jackson told him that
someone had been taking the firewood from Sellman's lot. Concluding that someone was
stealing his firewood, Nau informed Jackson that he was going to reclaim his wood and asked
if he could gain access to it by using a small road on her property. He also left her his card
with his name and number in case anyone concerned about the wood wanted to contact him.
He then spent most of the next day at Sellman's lot, loading the firewood. He loaded
approximately two to four cords of wood, making several trips. Nau testified that shortly
thereafter, he tried to inform Sellman that he had taken the wood, but because Sellman's
phone numbers in Palm Springs and elsewhere were unlisted, Nau could not reach him.
____________________

1
Nau testified that before the lot was sold, he reached a gentleman's agreement with Sellman that if he
would allow me to leave [my] wood there [on the lot], that he would be free to use what he needed for his home
there. He added I thought that he had agreed to allow me to leave the wood there, with the freedom on his part
to use what he needed for his home, and that when I wanted some wood, or needed some wood, I could come get
some, also.
Sellman, however, testified that Nau merely told him, before the sale, that I [Sellman] would have wood for
many years. Sellman interpreted that statement to mean that Nau was including the firewood with the sale of the
lot, even though the wood was not included in the sales agreement.
104 Nev. 248, 250 (1988) Nau v. Sellman
to inform Sellman that he had taken the wood, but because Sellman's phone numbers in Palm
Springs and elsewhere were unlisted, Nau could not reach him.
When Sellman and McMonagle returned to their house, they discovered the wood was
missing. They spoke with their neighbor and she told them Nau had taken the wood. Without
attempting to reach Nau, they then contacted the police and informed Officer Salkowski that
Nau had taken the firewoodwhich they valued at approximately $1,500without their
permission. After questioning Jackson, Salkowski filed a criminal complaint against Nau, and
he was subsequently arrested for grand larceny.
Although at the preliminary hearing Nau protested his innocence, arguing that he thought
the wood was his, Nau was bound over.
2
He later entered a plea of nolo contendere to
trespassing. He was fined $50 and ordered to pay $500 restitution to Sellman. Nau then filed
a civil action against Sellman, alleging false arrest and negligent infliction of emotional
distress. Sellman filed a counterclaim, alleging that Nau had earlier committed fraud when he
sold Sellman the lot.
The jury found for Sellman and McMonagle on Nau's false imprisonment and negligent
infliction of emotional damage actions; it awarded Sellman and McMonagle $8,000 for their
counterclaim alleging fraud. The district court also awarded Sellman approximately $7,000 in
attorney fees. Nau appeals.
Discussion
Two years after Nau sold Sellman the lot, Sellman discovered that the foundation Nau
built extended about seven feet into a setback area. As a result, the County halted
construction on his house until he obtained a variance. When Nau sued Sellman for false
arrest, Sellman counterclaimed for fraud, alleging Nau had misrepresented that the foundation
on the lot was legal, when in fact it was both set back and out of square. As noted, the
jury awarded Sellman $8,000 on this counterclaim.
Nau argues that there is no substantial evidence to support the jury's conclusion that he
defrauded Sellman. After examination of the record, we agree.
[Headnotes 1, 2]
To prove fraud, Sellman needed to show: (1) that Nau made a false representation (2) with
knowledge of its falsity (3) and with the intent to induce a sale through reliance on the
misrepresentation.
____________________

2
Justice of the Peace Pope, after considering the evidence presented in the preliminary hearing, bound Nau
over. However, he immediately thereafter issued a Statement of Error in which he declared that The Court,
upon further reflection, believes that it did not have probable cause to support a determination in favor of the
State on the element of knowing intention to permanently deprive the owner of the property alleged to have been
stolen.
104 Nev. 248, 251 (1988) Nau v. Sellman
the intent to induce a sale through reliance on the misrepresentation. Sellman also needed to
show that (4) he justifiably relied on the misrepresentation, and (5) he suffered damages as a
result of his reliance. Sanguinetti v. Strecker, 94 Nev. 200, 206, 577 P.2d 404, 408 (1978).
Despite counsel's attempt, during oral argument, to support and justify the jury's verdict, the
record simply reflects no significant support for any of the elements of fraud. Accordingly,
we reverse the jury's verdict on the fraud action and $8,000 award.
[Headnotes 3, 4]
Nau also argues that the district court committed error prejudicing his false arrest cause of
action. At trial, Mr. Kenneth Howard, a Chief Deputy District Attorney, testified for Sellman
about Nau's arrest and prosecution. Howard first testified that in his opinion, Nau was guilty
of the crime of grand larceny. He then added that he had seen thousands of guilty defendants,
and, judging by Nau's demeanor in the preliminary hearing, Nau also acted like a guilty
guy. Nau's trial counsel did not object. Nau argues that by allowing this testimony, the
district court committed plain error.
In Winiarz v. State, 104 Nev. 43, 752 P.2d 761 (1988), this court concluded that it was
error for a court to allow an expert to testify that the defendant was a murderer and thereby
usurp the jury function. In this appeal, Howard's testimony that Nau was guilty of grand
larceny was tantamount to testimony that Sellman was not liable for false arrest. And, with
due respect to Howard's ability to perceive guilt based solely on appearance and demeanor,
3
his opinion on the subject was improper and should not have been admitted.
Nevertheless, we conclude that the improper testimony is not a basis for reversal of the
false arrest verdict. In order to prove false arrest, a plaintiff must show the defendant
instigated or effected an unlawful arrest. However, as Restatement (Second) of Torts 45(A)
comment c (1965) notes:
It is not enough for instigation that the actor has given information to the police about
the commission of a crime, or has accused the other of committing it, so long as he
leaves to the police the decision as to what shall be done about any arrest, without
persuading or influencing them.
____________________

3
The prosecutorial judgment that Nau was guilty of grand larceny may not have been too keen. Not too many
would-be thieves leave their business card, with name and phone numbers, at the neighbors, ask permission to
use their road, and then spend all day, in broad daylight, purloining firewood of a quantity hardly worth the risk
of apprehension and criminal prosecution.
104 Nev. 248, 252 (1988) Nau v. Sellman
[Headnote 5]
In this case, Nau did not show that Sellman or McMonagle misrepresented or neglected to
provide any material information, in their report to the police officer, about the circumstances
surrounding the firewood. The record on appeal suggests that Sellman and McMonagle
accurately and fully reported their personal knowledge about the loss, to Officer Salkowski,
under a good faith belief that the wood was theirs and wrongfully taken and left the decision
whether to instigate charges up to the police and district attorney's office. Accordingly,
although we reverse the jury verdict with respect to Sellman's fraud counterclaim and the
district court's award of attorney fees,
4
we affirm the jury verdict that Sellman and
McMonagle are not liable for false arrest.
____________________

4
See generally Barnum v. Williams, 84 Nev. 37, 42, 436 P.2d 219, 222-23 (1968).
____________
104 Nev. 252, 252 (1988) Larson v. B.R. Enterprises
JACK LARSON, Appellant, v. B.R. ENTERPRISES, INC., d/b/a RNR TOURS, and
BERTRAM S. ROSS and the ESTATE OF JOSEPHINE F. ROSS, Respondents.
No. 18336
June 24, 1988 757 P.2d 354
Appeal from a district court judgment on a counterclaim. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Joint venturers and respective corporations filed actions against each other for conversion,
monies due on promissory note, and accounting. The district court entered judgment from
which one venturer appealed. The Supreme Court held that: (1) one venturer had converted
entire $15,375 in commissions owed to other venturer; (2) venturer was entitled to interest on
repayment of $15,000 given for option, under terms of promissory note; and (3) trial court
erred in accounting and distribution of net profits of corporations without consideration of
above the line expenses.
Reversed and remanded.
[Rehearing denied December 8, 1988]
Gang & Berkley, Las Vegas, Michael, Best & Friedrich and Gaar W. Steiner, Milwaukee,
Wisconsin, for Appellant.
Lovell, Bilbray & Potter, Las Vegas, for Respondents.
1. Trover and Conversion.
Joint venturer exercised wrongful dominion over entire $15,375 and not merely $9,375 of other
venturer's commission, even though joint venturer used $6,000 of other venturer's
commission to pay an alleged debt of other venturer's, where joint venture had ended
at time commission was collected, joint venturer admitted that commission was other
venturer's, joint venturer did not obtain or care about other venturer's approval
before paying purported debt, and joint venturer paid $6,000 alleged debt to protect
joint venturer's own reputation.
104 Nev. 252, 253 (1988) Larson v. B.R. Enterprises
not merely $9,375 of other venturer's commission, even though joint venturer used $6,000 of other
venturer's commission to pay an alleged debt of other venturer's, where joint venture had ended at time
commission was collected, joint venturer admitted that commission was other venturer's, joint venturer did
not obtain or care about other venturer's approval before paying purported debt, and joint venturer paid
$6,000 alleged debt to protect joint venturer's own reputation.
2. Bills and Notes.
Optionee who made $15,000 down-payment, evidenced by promissory note, for option to purchase stock
in corporation was entitled to interest on repayment of note, where language of note which shareholder
signed and which provided for payment of interest to optionee was plain and its meaning was clear.
3. Bills and Notes.
Trial court erred in finding that only corporation was liable for $15,000 down-payment evidenced by
promissory note which optionee paid to shareholder for option to purchase shares where, under terms of
note, shareholder was debtor, corporation was guarantor, and optionee sued shareholder for monies owned
under note.
4. Joint Ventures.
Joint venture agreement, which provided for sharing of net profits of two corporations, was intended to
ensure equal compensation to each venturer, so that trial court erred in not making adjustments to
accounting and distribution of net profits to reflect fact that one venturer paid larger salary to himself and
made contributions to profit-sharing plan from corporate profits.
OPINION
Per Curiam:
The Facts
Larson, appellant, was the sole shareholder of Casino Holiday Inc. (hereafter CHI).
Ross, respondent, was the sole shareholder of B.R. Enterprises (hereafter BRE). Both
corporations arranged junket trips to Las Vegas.
On September 11, 1979, Larson and Ross entered a venture wherein they generally agreed
to share the net profits of the two corporations and give each other options to purchase 50%
of the other's corporation. They signed two contractsentitled Agreement and Service
Contractdetailing the terms of their agreement and relationship. At the same time, Larson
paid Ross $15,000, as a down payment under a purchase option, for which Ross executed a
promissory note, guaranteed by his corporation, in the event that the purchase was not
consummated. The Agreement, Service Contract, and option to purchase were initially
intended to expire on April 30, 1980. However, the parties later agreed to extend all three to
September 11, 1981. During the two years of the venture, BRE entrusted Larson, for
investment purposes, with $60,000; Larson never exercised his option to purchase.
104 Nev. 252, 254 (1988) Larson v. B.R. Enterprises
purposes, with $60,000; Larson never exercised his option to purchase.
Toward the end of this two-year period, the relationship between the two men cooled, and
they allowed the venture to end on September 11, 1981. At this time, Larson still had BRE's
$60,000; Ross still had CHI's $15,000. In November, 1981, the Four Queens Hotel gave Ross
$15,375 it owed CHI, for junkets CHI had produced. Ross unilaterally refunded the Four
Queens $6,000, out of the $15,375, to satisfy an alleged debt of one of Larson's customers,
and retained the remainder of the commission.
In May, 1982, BRE sued Larson, alleging he converted the $60,000 that BRE had placed
in his trust. Larson's counterclaim against BRE and Ross sought recovery of his $15,375 Four
Queens' commission plus interest, recovery of the $15,000 he had paid Ross under the
purchase option, with interest, and an accounting/equitable division of the two corporations'
profits, as provided by the Agreement.
Following a bench trial, the district court concluded that Larson was liable to BRE for the
$60,000 BRE had given him to invest. In deciding Larson's counterclaims against BRE, the
court found that BRE had converted only $9,375 of Larson's $15,375 commission from the
Four Queens. The court also concluded that BRE was liable to Larson and CHI for $15,000,
but no interest was due on this sum. And finally, the court, after an accounting, determined
the net profits of the two corporations for the Agreement period and ordered the parties to
split these profits.
Discussion
We have appropriately held that It is the exclusive province of the court, sitting without a
jury, to determine facts on conflicting evidence and its findings, if supported by substantial
evidence, should not be disturbed on appeal. Johnson v. Johnson, 89 Nev. 244, 246, 510
P.2d 625, 626 (1973) (citation omitted). Larson argues that there is not substantial evidence to
support the district court's finding that Ross only converted $9,375 of the $15,375 Ross
collected from the Four Queens. We agree.
[Headnote 1 ]
In Bader v. Cerri, 96 Nev. 352, 357 n.1, 609 P.2d 314, 317 n.1 (1980), this court noted
Conversion exists where one exerts wrongful dominion over another's personal property or
wrongful interference with the owner's dominion. The record contains little or no evidence
that Larson authorized Ross to use his money to pay an alleged debt to the Four Queens. At
the time Ross collected Larson's commission, the venture between the two men had ended.
104 Nev. 252, 255 (1988) Larson v. B.R. Enterprises
had ended. Ross admitted, at trial, that the money was Larson's, and that he did not obtain or
care about Larson's approval before paying Larson's purported debt, and that he paid the
$6,000 debt to protect his own reputation. As a result, we conclude that the record clearly
shows that Ross exercised wrongful dominion over the entire $15,375, and not merely $9,375
of Larson's commission. Because the district court's finding on this issue is unsupported by
substantial evidence, it must be reversed.
1

[Headnote 2]
Larson also argues that the district court erred by failing to award interest on a $15,000
loan he made to Ross. As noted, the parties' venture began after Ross made an offer to sell
half of his BRE stock to Larson, which offer Larson did not accept. Larson then apparently
made a counter-offer for a purchase option, whereby he would pay Ross $15,000 up front in
order to reserve the right to later pay an additional amount, if necessary, to finalize the
purchase of BRE stock. The parties agreed to this counter-offer. Larson's attorney prepared
the three documents, including the promissory note that Ross signed detailing the treatment of
the $15,000 until the option was exercised.
The Note Ross signed provides:
On or before April 31, 1980 . . . Bertram S. Ross and Josephine F. Ross, jointly and
severally promise to pay to Casino Holiday, Inc. . . . the sum of Fifteen Thousand and
00/100 Dollars ($15,000.00) with interest at the rate of 10 percent per annum from date
[September 11, 1979] until paid, interest payable in a lump sum upon payment of the
principal amount or the due date whichever is sooner, and if not so paid, to be
compounded at the lesser of 15 percent or the maximum legal rate of interest for
individuals allowable by law. . . .
2

The Agreement signed the same day designates this transfer of money as a loan.
Larson maintains that the $15,000 he paid Ross on September 17, 1979, was both
consideration for a purchase option and a loan. He argues that even though the option was
never exercised, the express terms of the promissory note mandate an award of $15,000
with interest, and the district court erred by awarding him $15,000 without interest.
____________________

1
We also note that although the district court awarded BRE interest, from October 1, 1981 until paid, on the
$60,000 Larson converted, it did not reciprocate with regard to the $15,375 that Ross converted. We see no
reason, under the facts, why the parties should be treated differently in this matter. As a result, the $15,375 that
Ross converted will also bear interest, until fully paid, at the legal rate, from October 1, 1981.

2
As noted, this note was later extended from April 31, 1980 to September 11, 1981.
104 Nev. 252, 256 (1988) Larson v. B.R. Enterprises
the express terms of the promissory note mandate an award of $15,000 with interest, and the
district court erred by awarding him $15,000 without interest. We agree.
The language of the note Ross signed is plain and its meaning is clear. It unequivocally
provides that the $15,000 Larson paid Ross will be repaid with interest, the rate depending on
when the Note is repaid. The Note, prominently labelled as such, is not long, nor are the
terms detailed or complex. The parties had similar bargaining power, were experienced
businessmen, and Ross had time to read the Note before agreeing to its terms. We have held
that Courts are bound by language which is clear and free from ambiguity and cannot, using
the guise of interpretation, distort the plain meaning of an agreement. Watson v. Watson, 95
Nev. 495, 496, 596 P.2d 507, 508 (1979).
[Headnote 3]
We conclude that the district court's finding, that the parties understood no interest was to
accrue as to the Fifteen Thousand ($15,000) Dollars paid by Defendant LARSON to Plaintiff
B.R. Enterprises, contradicts the plain terms of the Note, which provides for payment of
interest to Larson. Accordingly, we reverse the district court's award which disallows interest
and remand with instructions to enter judgment, for Larson, in accordance with the Note's
terms.
3

[Headnote 4]
Finally, Larson contends that the district court, in its accounting, failed to arrive at the
proper net profit for BRE, and as a result, he was not awarded his fair share of BRE's profits
under the Agreement. The Agreement provides:
Larson/Casino and Ross/BR shall share equally, as their interests may appear, in all net
profits of the two corporate entities during the period October 1, 1979, through April
30, 1980, said profits to be determined in accordance with good accounting practice
consistently applied and payable, unless otherwise agreed, on June 1, 1980. For this
division of profits, it is recognized that equitable adjustments may be necessary to fairly
reflect operations, income, and expenses of Casino and BR during the period.
The district court determined that, during the period in question, BRE's net profit was
$27,052. Accordingly, the district court ordered BRE to pay LarsonJCHI one-half of
$27,052.
____________________

3
As well, we conclude that the district court also erred by holding only BRE liable for the $15,000, and not
Ross as well. Under the terms of the note, Ross was the debtor, BRE the guarantor. In his third-party complaint,
Larson sued Ross for the monies owed under the note. Accordingly, both Ross and BRE should be liable for
repayment of the note.
104 Nev. 252, 257 (1988) Larson v. B.R. Enterprises
court ordered BRE to pay Larson/CHI one-half of $27,052. Larson argues that in doing so,
the court failed to make equitable adjustments, as allowed by the Agreement, necessary to
fairly reflect the operations, income and expenses of Casino and BR during the two years of
the venture. More specifically, Larson argues that because Ross paid himself, out of BRE's
gross income, more salary than he paid Larson, and also made significant contributions to the
BRE profit-sharing plan, BRE's net profit was lower than it should have been. We also agree
with this contention.
In construing contracts, a court should ascertain the intention of the parties from the
language employed as applied to the subject matter in view of the surrounding
circumstances. Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 112, 424 P.2d 101, 105
(1967). We are convinced, on review of the record, that the parties intended the Agreement to
ensure, during the period in question, equal compensation, rather than a mere division of
profits after differing salaries were taken. Ross testified, for example, that when the
Agreement was signed, he intended to draw a thousand a week, the same salary that the
parties had agreed to pay Larson. Instead, Ross apparently drew as a salary approximately
$100,000 per year, or about $50,000 more a year than Larson.
4
It is apparent that the use of a
net profit without consideration of above the line expenses has allowed Ross to manipulate
BRE's profit and escape the Agreement's intent and spirit.
5

Accordingly, because the district court's accounting and division did not fairly reflect the
intent of the parties in entering the Agreement, and because of the other errors herein
discussed, we remand for a new accounting and judgment in accordance with this decision.
____________________

4
In addition, over the two years Ross apparently contributed, from BRE's gross income, about $142,000 into
the profit sharing plan, which will inure to his benefit but not Larson's. To the extent that Ross's periodic
contributions to the profit sharing plan during the period of his agreement with Larson exceeded the amount of
his periodic contributions antedating the agreement, such excess should be divided equally between the parties.

5
Again, the district court also erred by holding both Larson and CHI liable for Ross's half of CHI's profits,
but holding only BRE liable for Larson's half of BRE's profits.
____________
104 Nev. 258, 258 (1988) Shetakis v. Centel Communications
JIM L. SHETAKIS DISTRIBUTING COMPANY, INC., dba SHETAKIS WHOLESALERS,
INC., Appellant, v. CENTEL COMMUNICATIONS COMPANY dba CENTEL BUSINESS
SYSTEMS, Respondent.
No. 18322
June 24, 1988 756 P.2d 1186
Appeal from a judgment of the district court in a civil action. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
Communications company brought action against corporate customer when customer
refused to pay for communications equipment alleging customer had repudiated and breached
contract and that communications company was entitled to liquidated damages. The district
court found that valid contract had been formed and awarded communications company
liquidated damages, and customer appealed. The Supreme Court held that no legally binding
contract was formed between communications company and customer since circumstances
indicated that particular manner of contract formation was contemplated by parties in that
customer would not be bound unless sales agreement of communications company was
executed by authorized agent of customer, and sales agreement was not signed by authorized
agent of customer.
Reversed and remanded, with instructions.
Denton & Denton, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Todd Touton, Las Vegas, for Respondent.
1. Contracts.
Where circumstances indicate that particular manner of contract formation is contemplated by parties,
binding contract is not formed in absence of compliance with contemplated procedure.
2. Sales.
No legally binding contract was formed between communications company and customer; circumstances
indicated that particular manner of contract formation was contemplated by parties in that customer would
not be bound unless sales agreement of communications company was executed by authorized agent of
customer, and sales agreement was not signed by authorized agent of customer.
OPINION
Per Curiam:
Centel Communications Company (Centel) believed that it had formed a contract with
Shetakis Wholesalers {"Shetakis") binding Shetakis to purchase $52,552.00 worth of
specialized communications equipment from Centel.
104 Nev. 258, 259 (1988) Shetakis v. Centel Communications
had formed a contract with Shetakis Wholesalers (Shetakis) binding Shetakis to purchase
$52,552.00 worth of specialized communications equipment from Centel. When Centel
attempted to bill Shetakis for the equipment, Shetakis refused to pay, claiming that no
contract had been formed. The trial court decided that a valid contract had been formed and
awarded Centel $13,893.44 in liquidated damages.
Jim Shetakis is the resident of Shetakis Distributing Company, doing business as Shetakis
Wholesalers, Inc. Sometime prior to the summer of 1983, Jim Shetakis was contacted by a
Centel representative who stated that he had a communications system that could improve
Shetakis's date processing system. Jim Shetakis referred the Centel representative's call to
Glenn Oderkirk, who was the data processing manager at Shetakis.
In the mid-summer of 1983, Oderkirk contacted David Markham, Centel's west division
service center manager, to discuss the possibility of acquiring a communications system from
Centel. After several in-person meetings between Oderkirk and Markham, Centel prepared a
written proposal and presented it to Oderkirk.
In September of 1983, Centel furnished Shetakis with Centel's standard sales agreement.
Paragraph Seven of the Centel Sales agreement stated that the agreement binds Customer
when it is executed by Customer and Centel when it is executed by Centel and delivered to
Customer. That same month, Oderkirk personally delivered a Shetakis form purchase order
(first purchase order) to Centel's Markham at Markham's office.
The first purchase order was signed by Jim Shetakis and had typed on the bottom the
following: This purchase order is subject to the same terms & conditions of Centel Business
Systems standard Sales Agreement. Relying on Paragraph Seven of the Centel sales
agreement, it was Jim Shetakis's position that the first purchase order was not binding on
Shetakis. The particular form used for the first purchase order was in fact ordinarily used by
Shetakis for purchasing the merchandise that Shetakis would sell to its institutional
customers; but it was not assigned a purchase order number by the computer as would
ordinarily have been done, and the document was not used or intended to be used in the
manner that these forms are ordinarily used in the normal course of Shetakis's business.
After reviewing the first purchase order, Centel declined to accept it because (1) it
contained notations about a lease agreement which Centel had not discussed with Shetakis;
(2) there were deletions which had not been initialed; and (3) two different typewriter prints
could be discerned.
In early December of 1983, Centel received a second form purchase order from Shetakis
(second purchase order). The second purchase order, dated December 15, 19S3, was
signed by Shetakis's vice-president, Glenda Sue Beasley.
104 Nev. 258, 260 (1988) Shetakis v. Centel Communications
second purchase order, dated December 15, 1983, was signed by Shetakis's vice-president,
Glenda Sue Beasley. Beasley testified that she did not believe the second purchase order was
a binding offer by Shetakis; instead, she believed that her signature on the form was necessary
merely to preserve the prices that had been quoted to Shetakis by Centel. The second
purchase order contained a fictitious purchase order number
1
and, similar to the first
purchase order, stated that: This purchase order is subject to the same terms and conditions
of Centel Business Systems standard Sales Agreement.
After receiving the second purchase order, Centel's president prepared and signed one of
Centel's form sales agreements. The signed sales agreement recited that Shetakis's purchase
order was attached and made a part of the agreement. The purchase order number appearing
on the second purchase order was written on the blank line of the Centel sales agreement
where the customer would ordinarily sign. On December 28, 1983, Centel delivered the
Centel sales agreement signed by Centel's presidentwith the second purchase order attached
to itto Shetakis.
Since Centel had rejected the first purchase orderin apparent conformity with the
restrictions on the manner of contract formation specified in Paragraph Seven of the Centel
sales agreementJim Shetakis believed that Centel similarly would not treat the second
purchase order as forming a binding agreement. Jim Shetakis testified that he believed that
the purpose of having Beasley sign the second purchase order was merely to fix the prices on
the equipment Shetakis was interested in.
Centel, however, took the position that delivery of the second purchase order, signed by
Beasley, when attached to the Centel sales agreement, signed by Centel's president,
consummated the negotiations between Centel and Shetakis. Believing Shetakis to be
contractually bound, Centel committed itself to pay $26,948.00 to Trembly Associates for the
equipment ordered by Shetakis. Centel also ordered an additional $1,750.00 worth of
equipment from Conklin Equipment Corporation to satisfy Shetakis's order.
In February, 1984, Shetakis informed Centel that Shetakis was not certain it still wanted
the equipment. Centel then invoiced Shetakis for the down payment on the equipment,
only to be told by Beasley that Shetakis did not need the equipment.
____________________

1
Beasley testified that this was a dummy purchase order number. Real purchase orders are assigned by the
computer and have six digits. The five digit dummy purchase order number on the second purchase order was
really Shetakis's post office box number.
The presence of the fictitious purchase order number on the second purchase order, like the absence of any
purchase order number on the first purchase order, indicates that Shetakis's use of the second purchase order in
this case was not in the ordinary course of Shetakis's business.
104 Nev. 258, 261 (1988) Shetakis v. Centel Communications
Shetakis for the down payment on the equipment, only to be told by Beasley that Shetakis did
not need the equipment.
Centel filed a complaint, claiming that Shetakis had repudiated and breached its contract
with Centel and that Centel was entitled to $13,893.44, pursuant to the liquidated damages
clause contained in the Centel sales agreement. The trial court ruled for Centel, awarding
Centel $13,893.44 in liquidated damages and an additional $5,379.66 in interest, and this
appeal followed.
[Headnote 1]
We agree with Shetakis that where the circumstances indicate that a particular manner of
contract formation is contemplated by the parties, a binding contract is not formed in the
absence of compliance with the contemplated procedure. See Widett v. Bond Estate, Inc., 79
Nev. 284, 382 P.2d 212 (1963); Dolge v. Masek, 70 Nev. 314, 268 P.2d 919 (1954); cf.
Pacific Photocopy v. Canon U.S.A., Inc., 646 P.2d 647 (Or.App. 1982) (provisions of offer
relating to manner of acceptance must be complied with); Cochran v. Connell, 632 P.2d 1385
(Or.App. 1981) (offeror may restrict manner of acceptance if his intention to do so is clearly
expressed); NRS 104.2206 (offer to make contract shall be construed as inviting acceptance
in any reasonable manner unless otherwise unambiguously indicated by the language or
circumstances); Restatement (Second) of Contracts sec. 60 (1981). Nevertheless, we are
aware that some degree of agreement is usually manifested prior to the formation of a
contract in the manner contemplated by the parties. As we have previously stated in this
regard, where negotiations have yet to be consummated in the contemplated manner, if such
prior manifestations of agreement are to be held to constitute binding contractual assent, the
evidence that the parties . . . intended presently to be bound should . . . be convincing and
subject to no other reasonable interpretation. Dolge, 70 Nev. at 319, 268 P.2d at 921; see
also Tropicana Hotel v. Speer, 101 Nev. 40, 43, 692 P.2d 499, 502 (1985).
In the present case, the circumstances indicate that a particular manner of contract
formation was contemplated by the parties. That manner was expressed unambiguously in
Paragraph Seven of the Centel sales agreement, which was provided to Shetakis at the
initiation of negotiations between the parties. Paragraph Seven of the Centel sales agreement
stated that it binds Customer when it is executed by Customer and Centel when it is
executed by Centel and delivered to Customer. We believe that Shetakis reasonably assumed
that it would not be bound unless the Centel sales agreement was executed by [the]
Customer, that is by an authorized agent of Shetakis.
104 Nev. 258, 262 (1988) Shetakis v. Centel Communications
[Headnote 2]
The Centel sales agreement was signed by Centel's president; however, it was not signed
by an authorized agent of Shetakis. Since the Centel sales agreement was not signed by an
authorized agent of Shetakis, the particular procedure for contract formation contemplated by
both parties was not complied with. In the absence of such compliance, the evidence in this
case that both parties intended to be presently bound is neither convincing nor is it subject
to no other reasonable interpretation. Dolge, 70 Nev. at 319, 268 P.2d at 921. We therefore
hold that no legally binding contract between Shetakis and Centel was formed.
2

Accordingly, we reverse the judgment of the trial court and remand this matter with
instructions that judgment be entered for Shetakis.
____________________

2
Shetakis's second purchase order stated that it was subject to the same terms and conditions of Centel
Business Systems standard Sales Agreement. The Centel sales agreement signed by Centel's president stated
that Shetakis's purchase order was attached and made a part of the agreement.
We reject Centel's argument that the above language resulted in the incorporation by reference of the second
Shetakis purchase order in the Centel sales agreement, obviating the need for the signature of an authorized
agent of Shetakis on the Centel sales agreement. Even though the format of the Centel sales agreement clearly
contemplated referencing attached documents, such as the second Shetakis purchase order, we find no reason to
believe that this changed the effect of Paragraph Seven.
____________
104 Nev. 262, 262 (1988) Koza v. State
MAGGIE JO KOZA aka MAGGIE ADAMS, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18196
June 24, 1988 756 P.2d 1184
Appeal from a judgment of conviction of first degree murder with use of a deadly weapon,
robbery with use of a deadly weapon and imposition of sentence of life imprisonment without
the possibility of parole for the murder, consecutive life sentence for the use of the deadly
weapon, fifteen years for the robbery, and fifteen consecutive years for use of the deadly
weapon, murder and robbery sentences to run consecutively. Eighth Judicial District Court,
Clark County; Addeliar D. Guy, Judge.
Defendant was convicted of first degree murder with use of deadly weapon by the district
court. Defendant appealed. The Supreme Court, 718 P.2d 671, reversed and remanded. After
retrial, and conviction, defendant appealed. The Supreme Court held that: (1) fact that
information did not reveal the State's intention to proceed on alternative theories of aiding
and abetting and felony murder doctrine did not warrant reversal, and {2) even if
testimony of people, who allegedly gave defendant ride following crime, was "fruit of the
poisonous tree," admission of testimony was not reversible error.
104 Nev. 262, 263 (1988) Koza v. State
intention to proceed on alternative theories of aiding and abetting and felony murder doctrine
did not warrant reversal, and (2) even if testimony of people, who allegedly gave defendant
ride following crime, was fruit of the poisonous tree, admission of testimony was not
reversible error.
Affirmed.
[Rehearing denied December 8, 1988]
Monte J. Morris, Henderson, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland and Ulrich Smith, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Where defendant has not been prejudiced by charging instrument's inadequacy, conviction will not be
reversed.
2. Criminal Law.
Fact that information did not reveal the State's intent to proceed on alternative theories of aiding and
abetting and felony murder doctrine did not require reversal of murder conviction entered at defendant's
second trial; defendant had ample notice of the State's intent to proceed on alternative theories in that the
State had proceeded against defendant on the alternative theories at defendant's first trial, and supplemental
information was filed revealing the intent to proceed on alternative theories.
3. Criminal Law.
Even if testimony of people who allegedly gave murder defendant ride following crime was fruit of the
poisonous tree, admission of testimony was not reversible error; sufficient other evidence existed to
establish defendant's guilt.
OPINION
Per Curiam:
Maggie Jo and Joseph Koza were arrested and charged with conspiracy to commit robbery
on November 5, 1980. Subsequently, they were also charged with the murder of a Las Vegas
taxi cab driver. Joseph Koza was convicted of that murder and his conviction was upheld by a
decision of this court in Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984). We reversed and
remanded for retrial appellant Maggie Jo Koza's murder conviction on the basis of an illegally
obtained confession. Koza v. State, 102 Nev. 181, 718 P.2d 671 (1986). Appellant was retried
in January, 1987. This appeal followed.
[Headnotes 1, 2]
First, appellant contends that it was reversible error for the district court to allow
respondent State of Nevada to proceed on alternative theories of prosecution.
104 Nev. 262, 264 (1988) Koza v. State
alternative theories of prosecution. The Information did not reveal that the State intended to
proceed on the theories of aiding and abetting and the felony murder doctrine. This court has
ruled that the charging document must give adequate notice to the defendant of the theories of
prosecution. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983); Wright v. State, 101 Nev.
269, 701 P.2d 743 (1985); NRS 173.075. The defendants in Barren and Wright had no prior
notice of the prosecutions' intent to proceed on alternative theories. This deprived them of the
ability to properly defend against the accusations and denied them their fundamental rights.
Wright. Maggie Jo Koza had ample notice of the State's intent and was not prejudiced by the
inadequacy of the Information. The State proceeded against appellant on the alternative
theories at her first trial. A Supplemental Information was filed revealing the prosecution's
intent to proceed on those theories. Counsel for Koza filed a motion in the district court
alleging inadequacy of the Information five months before the second trial. We do not
condone the State's failure to amend its Information to properly reveal the theories under
which it intended to proceed, but due process was served by appellant's actual knowledge of
the prosecution's intent to proceed on those theories. Where a defendant has not been
prejudiced by the charging instrument's inadequacy the conviction will not be reversed. Laney
v. State, 86 Nev. 173, 466 P.2d 666 (1970).
[Headnote 3]
Second, Koza argues that the testimony of the people in the pickup truck who allegedly
gave her and Joseph Koza a ride following the crime, was fruit of the poisonous tree and
admitted in error. Wong Sun v. United States, 371 U.S. 471 (1963). The witnesses were
discovered as a result of a Las Vegas newspaper article requesting that the people with the
pickup truck come forward to assist the prosecution in bolstering its case against the Kozas.
The district attorney's office acquired the ride information from Maggie Jo Koza's illegally
obtained confession. Even if the testimony was fruit of the poisonous tree its admission was
not reversible error. There was sufficient other evidence to establish Maggie Jo Koza's guilt
with respect to the crime charged. See Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985).
Her fingerprints were found on the bumper of the taxi cab driven by the murder victim. The
murder weapon was found in the apartment belonging to Maggie Jo and Joseph Koza.
Finally, Koza raises issues related to the testimony of switchboard operator Joseph Ulrey.
We disposed of the admissibility of this testimony in Koza v. State, 100 Nev. 245, 681 P.2d
44 (1984) and decline to address related concerns.
104 Nev. 262, 265 (1988) Koza v. State
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that appellant Maggie Jo Koza has failed to demonstrate error in this appeal. Accordingly, we
affirm the judgment of the district court.
____________
104 Nev. 265, 265 (1988) Owens v. District Court
CHIRS J. OWENS, Appellant, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE
JOHN MENDOZA, DISTRICT COURT JUDGE, DEPARTMENT V, Respondents.
No. 17870
June 24, 1988 756 P.2d 1183
Appeal from an order of contempt of court. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Appeal was taken from an order of contempt of court entered by the district court. The
Supreme Court held that comments of prosecutor during closing argument of trial, focusing
on advisory instruction and testimony of two defense witnesses, constituted proper closing
argument and district court abused its discretion in finding prosecutor in contempt.
Reversed.
[Rehearing denied December 8, 1988]
Rex A. Bell, District Attorney, James Tufteland, Deputy District Attorney, Clark County,
for Appellant.
Brian McKay, Attorney General, Carson City; Philip R. Byrnes, Deputy Attorney General,
Las Vegas; C. Stanley Hunterton, Las Vegas, for Respondents.
Contempt.
Comments of prosecutor during closing argument of trial, focusing on advisory instruction and testimony
of two defense witnesses, constituted proper closing argument and district court abused its discretion in
finding prosecutor in contempt.
OPINION
Per Curiam:
Appellant Chris Owens was held in contempt of court for comments uttered during the
closing argument of a criminal trial. We hold that such remarks do not rise to the level of
contempt under the circumstances of this case.
104 Nev. 265, 266 (1988) Owens v. District Court
Prior to closing arguments, the district court read various instructions to the jury including
jury instruction number thirteen, an advisory instruction of acquittal. NRS 175.381. During
closing argument and in the process of explaining to the jury why he thought the evidence
supported a conviction, the prosecution said: As I indicated earlier, the Court has given you
an opinion to dismiss this case or to find the Defendant not guilty. That's a glaring Instruction
in the group of Instructions that you have. It's a highly unusual Instruction. At that point the
district court interjected stating that such prosecutorial comments were uncalled for and
contrary to the law stated. The court went on to say that [a]ny further conduct along this line
will require me to take further proceedings against you, sir. (Emphasis added.) Owens made
no further comments along this line.
The defense's closing argument focused, in part, on the testimony of two defense
witnesses, both of whom were in some way involved with the University of Nevada-Las
Vegas basketball team. Subsequently, as the state would up its rebuttal to the defense's
closing argument, Owens said:
Be fair. Look at the evidence. Consider your common experiences. Freely discuss what
you have seen. Do the fair thing. Rise up as citizens of this State and brand Lawrence
West for what he is. Stem the tide of athletic politics in this case and convict Mr.
Lawrence West because he is guilty, ladies and gentlemen. He is guilty as charged.
Thank you.
After the jury returned a guilty verdict, the district court considered contempt charges
against Owens. The district court found Owens's comments to be contemptuous, citing
Owens's athletic politics comment and his argument concerning the court's advisory
instruction as grounds for its finding. Later, when the order was formalized, additional
grounds were added.
Upon a careful review of the record, viewing the aforementioned athletic politics remark
and advisory instruction argument as the foundation for the district court's contempt finding,
we cannot conclude that Owens's conduct was contemptuous; rather, we view his statements
as proper closing argument. Thus, we hold that the district court has abused its discretion and
consequently reverse the district court's order of contempt.
____________
104 Nev. 267, 267 (1988) Courtney v. State
SEAN OLIVER COURTNEY, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 17941
June 24, 1988 756 P.2d 1182
Appeal from judgment of conviction of cheating at gambling. Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
Defendant was convicted in the district court of cheating at gambling and he appealed. The
Supreme Court held that error which occurred when jury was given exhibit indicating that
defendant had previously been charged with cheating at gambling required reversal.
Reversed.
Michael A. Cherry, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Timothy
Randolph, Deputy District Attorney, and Larry G. Sage, Deputy District Attorney, Washoe
County, for Respondent.
Criminal Law.
Error which occurred when jury, which was considering charges of cheating at gambling against
defendant, was given an exhibit which contained a notation on back indicating that defendant had
previously been charged with cheating at gambling required reversal of the conviction; court's instruction
to the jury that the note referred to accusations or charges against the defendant, not to prior convictions,
and that the jury should disregard the notation was not sufficient to cure the harm.
OPINION
Per Curiam:
On October 6, 1985, appellant Sean Oliver Courtney was observed playing one particular
slot machine in Fitzgerald's Hotel and Casino, in Reno, in a suspicious way. He would cover
the window of the slot machine with a newspaper when he pulled the handle. A few days
later, after the machine was moved, Courtney was observed playing the machine the same
way at the new location. Casino personnel observed that some of the reels remained
stationary when Courtney pulled the slot machine's handle, and said he pulled the handle
excessively hard. Courtney was arrested and charged with cheating at gambling by
racheting or handle popping.
104 Nev. 267, 268 (1988) Courtney v. State
The jury in Courtney's trial was inadvertently exposed to a notation on the back of an
exhibit listing Courtney's name, address, and other personal data, and the following: 8/12/78,
consp. [conspiracy] to cheat at gaming, (2), cheat at gambling, (2). The exhibit was admitted
to show that Courtney had given a false name when he was first detained by casino security
personnel. The prosecutor and defense attorney had both examined the exhibit without
noticing the notation on the back. The jury discovered the note during its deliberations and
asked the court whether it should be considered. The court struck the notation and
admonished the jury to disregard it.
The note concerned Courtney's prior conviction of cheating at gambling. The court
recognized that the jury could consider it as such, and attempted to undo the damage by
explaining that the note referred to accusations or charges against Courtney, not convictions.
In our view, however, the damage could not be undone. We have previously explained that
[i]t is without question that, absent special conditions of admissibility, reference to past
criminal history is reversible error. Porter v. State, 94 Nev. 142, 149, 576 P.2d 275, 279
(1978) (citing Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967)); Marshall v. United
States, 360 U.S. 310 (1959). The reference need not be explicit, it is enough that a juror
could reasonably infer from the facts presented that the accused had engaged in prior criminal
activity. Manning v. Warden, 99 Nev. 82, 86, 659 P.2d 847, 850 (1983) (quoting
Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972)). NRS 48.045(2) provides that
[e]vidence 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. Even considering the trial
court's explanation that the note referred to previous charges, not convictions, it is impossible
to discount an inference by the jurors that Courtney was a cheat. Such an inference is a
violation of due process because it affects the presumption of innocence. See Manning, 99
Nev. at 87, 659 P.2d at 850.
The statute which forms the primary basis of the charges against Courtney offered the jury
little guidance in evaluating the evidence in this case. That statute, NRS 465.015, defines
[c]heat as to alter the selection of criteria which determine: (a) The result of a game; or (b)
The amount or frequency of payment in a game. Casino personnel did not observe Courtney
manipulate the slot machine handle in the way usually associated with racheting or handle
popping.
Under the statute, the evidence against Courtney required the jury to exercise a relatively
large amount of deduction and judgment. Cf. Coffman v. State, 93 Nev. 32, 559 P.2d 828
(1977) {defendant was observed pulling slot machine handle irregularly and "walking" the
reels).
104 Nev. 267, 269 (1988) Courtney v. State
(defendant was observed pulling slot machine handle irregularly and walking the reels).
Thus, it seems likely that the jury's knowledge or inference of Courtney's past cheating
affected its deliberations and verdict.
We cannot find, beyond a reasonable doubt, that the note concerning Courtney's prior
conviction for cheating had not effect on the jury. Manning, 99 Nev. at 87-88, 659 P.2d at
850; Chapman v. California, 386 U.S. 18, 24 (1967). Therefore, the jury's exposure to the
note concerning Courtney's prior conviction was not harmless error. Accordingly, the district
court's judgment is reversed and Courtney's conviction is vacated.
____________
104 Nev. 269, 269 (1988) Browning v. State
PAUL LEWIS BROWNING, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18157
June 24, 1988 757 P.2d 351
Appeal from a judgment of conviction of first degree murder with the use of a deadly
weapon, robbery with the use of a deadly weapon, burglary, escape and imposition of
sentence of death. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon, robbery with use of deadly weapon, burglary, and escape, and defendant appealed.
The Supreme Court held that: (1) defendant was not denied his constitutional and statutory
right to speedy trial, (2) State did not engage in purposeful racial discrimination in use or
peremptory challenges, (3) prosecutor's remarks during closing argument did not require
reversal, and (4) identification testimony was properly admitted
Affirmed.
[Rehearing denied August 16, 1988]
Beury & Schubel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County,
for Respondent.
1. Criminal Law.
Twenty-eight day delay in defendant's first degree murder, robbery, and burglary prosecution did not
violate defendant's constitutional and statutory right to speedy trial; due to severity of crimes court
would tolerate longer delay than for crime of less egregious proportions,
prosecutor's honest but negligent mistake in writing down wrong trial date and
professed inability to locate key prosecution witnesses prior to trial did not reveal
improper motive by state in requesting delay, and defendant failed to identify how
twenty-eight day delay prejudiced his defense.
104 Nev. 269, 270 (1988) Browning v. State
tolerate longer delay than for crime of less egregious proportions, prosecutor's honest but negligent mistake
in writing down wrong trial date and professed inability to locate key prosecution witnesses prior to trial
did not reveal improper motive by state in requesting delay, and defendant failed to identify how
twenty-eight day delay prejudiced his defense. U.S.C.A.Const. Amend. 6; NRS 178.556, subd. 1.
2. Criminal Law.
Dismissal of information is within discretion of district court where defendant is not brought to trial
within sixty days. NRS 178.556, subd. 1.
3. Jury.
Prosecution did not engage in purposeful racial discrimination when exercising peremptory challenges to
dismiss two black veniremen in murder prosecution; state's reason for dismissal that veniremen expressed
unalterable opposition to death penalty was sufficiently racially neutral to warrant removal by peremptory
challenge in capital case. U.S.C.A.Const. Amend. 14.
4. Criminal Law.
State's reference to horror movie Friday-the-13th and presumption of innocence as farce in closing
argument in capital murder prosecution did not require reversal in light of overwhelming evidence
presented at guilt phase of trial.
5. Homicide.
Defendant's claim that he was given insufficient notice of state's intent to seek death penalty in murder
prosecution could not be raised on appeal; at penalty hearing defendant did not argue insufficient notice but
only that testimony concerning prior crimes of violence committed by defendant was hearsay. NRS
175.552.
6. Criminal Law.
Although one-man show-up identification procedure applied by police officers may have been suggestive,
identification testimony was not inadmissible in murder, burglary, and robbery prosecution since
identifications were reliable; witnesses gave consistent detailed descriptions matching defendant to crime,
one witness positively identified defendant, and very little time had elapsed between initial viewing of
suspect and showup further diminishing risk of memory loss or contamination.
7. Criminal Law.
Witness' in court identification of defendant was properly admitted although witness could not make
previous out-of-court identification; witness' inability to identify defendant during pre-trial photographic
lineup was factor to be weighed by trier of fact but did not render in court identification inadmissible.
OPINION
Per Curiam:
At approximately 4:20 p.m. on November 8, 1985, Hugo Elsen was senselessly stabbed to
death while working in his jewelry store. Josy Elsen, Hugo's wife, was resting in the back
room of the jewelry store at the time of the killing. When she heard a scuffling sound, Josy
entered the showroom where she saw a black man wearing a blue cap squatting over Hugo
and holding a knife.
104 Nev. 269, 271 (1988) Browning v. State
holding a knife. Josy immediately fled out the back of the store. Appellant Paul Lewis
Browning was apprehended shortly thereafter. Based on overwhelming evidence, Browning
was convicted of Hugo's killing.
On December 31, 1985, Browning was arraigned in district court and trial was set for
March 3, 1986. On February 28, 1986, the state informed the district court that the deputy
district attorney who had appeared at the December 31, 1985, arraignment had erroneously
written down the trial date as March 31, 1986. As a result, the state was not prepared to go
forward with the trial as scheduled on March 3, 1986. Upon the state's request, the district
court granted a continuance, setting the trial for March 31, 1986.
On appeal, Browning contends that by delaying his trial twenty-eight days, the district
court violated his constitutional right to a speedy trial. We disagree.
[Headnote 1]
Although Browning promptly invoked his right to a speedy trial, under the circumstances
of this case, the mere twenty-eight day delay is insufficient to justify dismissal of the charges
against him. Due to the severity of the crimes charged, we will tolerate a longer delay than we
might for a crime of less egregious proportions. See Barker v. Wingo, 407 U.S. 514 (1972). In
addition, the reasons underlying the delay do not justify Browning's release; namely, the
deputy district attorney's honest, but negligent, mistake in transcribing the appropriate trial
date and the professed inability to locate key prosecution witnesses prior to trial do not reveal
an improper motive by the state in requesting the delay. Thus, this is not a case involving a
deliberate attempt to delay trial in order to hamper the defense, and therefore we need not be
so concerned with policing the state's activity. See Barker, 407 at 531. Moreover, Browning
has not reasonably identified how the twenty-eight day delay has prejudiced his defense. In
light of the overwhelming evidence of guilt presented against him at trial, it is clear that any
alleged prejudice would not rise to the level justifying dismissal of the charged crimes.
[Headnote 2]
Browning also contends that by delaying his trial twenty-eight days the district court
violated Browning's statutory right to a speedy trial. Once again we disagree. Dismissal of the
information is within the discretion of the district court where the defendant is not brought to
trial within sixty days. NRS 178.556(1). For the reasons set forth in connection with the
constitutional speedy trial claim, we hold that the district court did not abuse its discretion by
failing to dismiss the charges against Browning.
104 Nev. 269, 272 (1988) Browning v. State
During jury selection, two black men were drawn as part of the jury panel. The state,
however, used peremptory challenges to remove both black men from the jury. Browning, a
black man, argues that the elimination of both black prospective jurors deprived him of his
right to an impartial jury drawn from a representative cross section of the community in
violation of his fourteenth amendment right to equal protection of the law.
[Headnote 3]
Browning appropriately suggests that the elimination of both black jury panel members
established a prima facie case of purposeful discrimination. Batson v. Kentucky, 476 U.S. 79
(1986). Thus, it is encumbent upon the state to provide a racially-neutral explanation for
dismissing both black panel members by peremptory challenge. Batson, 476 U.S. at 97. The
state promptly explained that each of the dismissed panel members had expressed an
unalterable opposition to the death penalty. Upon review of the record, it is unmistakably
clear that each of the dismissed black panel members did indeed express the position that they
would automatically vote against the imposition of capital punishment without regard to the
evidence presented at trial. We hold that this reason is sufficiently racially-neutral to
warrant removal by peremptory challenge in a capital case such as the instant action. See
Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). Consequently, there was no showing of
purposeful racial discrimination, and Browning's right to equal protection was not
transgressed.
Browning also submits that he was denied a fair trial by numerous acts of prosecutorial
misconduct. Of those few alleged acts of misconduct properly preserved for review, we
believe only one alleged incident of misconduct merits discussion.
[Headnote 4]
During closing argument the state recounted the stabbing episode according to its view of
the evidence. The prosecutor became overly-animated, saying, And there was probably wild
stabbing going on, a hacking, a Friday-the-13th kind of scenario. Reference to the horror
flick Friday-the-13th served no purpose other than to divert the jury's attention from its
sworn task. However, in light of the overwhelming evidence presented at the guilt phase of
the trial, we cannot find the quantum of prejudice required to reverse.
1
Browning also
argues that he was given insufficient notice of the state's intent to seek the death
penalty.
____________________

1
We also denounce the state's reference to the presumption of innocence as a farce. The fundamental and
elemental concept of presuming the defendant innocent until proven guilty is solidly founded in our system of
justice and is never a farce. Even this outrageous but unpreserved act of misconduct, however, does not
prejudice Browning to the extent justifying reversal.
104 Nev. 269, 273 (1988) Browning v. State
Browning also argues that he was given insufficient notice of the state's intent to seek the
death penalty. According to NRS 175.552, the state is permitted to introduce evidence of
additional aggravating circumstances other than the aggravated nature of the offense itself
only if the defendant has been notified of the intended introduction before the penalty hearing
commences. NRS 175.552. The presentation of evidence regarding the aggravated nature of
the crime is not restricted by NRS 175.552.
[Headnote 5]
The only penalty hearing evidence attacked by Browning on appeal which involves
aggravating circumstances, other than the aggravated nature of the offense itself, is testimony
concerning prior crimes of violence committed by Browning. At the penalty hearing,
however, Browning did not argue NRS 175.552 as grounds for excluding the testimony;
rather, Browning contended that such testimony was inadmissible hearsay. The trial court
properly rejected Browning's hearsay challenge pursuant to the directive of NRS 175.552
which permits the introduction of aggravating circumstances evidence whether or not the
evidence is ordinarily admissible. NRS 175.552. Since new grounds for an objection may
not be raised on appeal, Geer v. State, 92 Nev. 221, 548 P.2d 946 (1976), we reject
Browning's attack.
2

After the police apprehended Browning, he was escorted back to the crime scene where he
was shown to three individuals. Two of these individuals had seen a black man in a blue cap
jogging away from the scene of the crime at approximately the time of the crimes. Browning
argues that the pretrial identification testimony of the two witnesses was improperly admitted
at trial because it was derived from an unnecessarily suggestive procedure resulting in
irreparable mistaken identifications, thereby denying him due process. See Neil v. Biggers,
409 U.S. 188 (1972).
[Headnote 6]
Although the one-man show-up procedure applied by the police officers may have been
suggestive under the circumstances of this case, the related testimony is not inadmissible
unless the identifications were unreliable. See Gehrke v. State, 96 Nev. 581, 613 P.2d 1028
(1980). We hold that the identifications were reliable, and hence the related testimony was
properly admitted into evidence.
3
See Gehrke, 96 Nev. at 584, 613 P.2d at 1030 {important
factors to be weighed against the corrupting influence of a suggestive identification
procedure includes the opportunity a witness has to view the criminal at the time of the
crime, the witness' degree of attention, the accuracy of the witness' prior description of
the criminal, the level of certainty demonstrated at the confrontation, and the time lapse
between the crime and the confrontation).
____________________

2
We note that Browning had actual notice of the state's intent to produce the contested testimony of at least
six days, and possibly seven days. Under the circumstances of this case, this six-day notice period is adequate to
meet the mandate of NRS 175.552.

3
Both witnesses gave consistent, detailed descriptions matching Browning to the crime. Both witnesses were
acutely aware of the man leaving the crime scene; one witness peered out a window for the express purpose of
locating
104 Nev. 269, 274 (1988) Browning v. State
(important factors to be weighed against the corrupting influence of a suggestive
identification procedure includes the opportunity a witness has to view the criminal at the
time of the crime, the witness' degree of attention, the accuracy of the witness' prior
description of the criminal, the level of certainty demonstrated at the confrontation, and the
time lapse between the crime and the confrontation).
[Headnote 7]
Finally, Browning insists that Josy Elsen's in-court identification of Browning should have
been suppressed by the district court because Josy could not make a previous out-of-court
identification. Josy's inability to identify Browning during a pre-trial photographic line-up is a
factor to be weighed by the trier of fact. Such inability, however, does not render the in-court
identification inadmissible. Jones v. State, 95 Nev. 613, 600 P.2d 247 (1979). Thus, the
district court properly admitted Josy Elsen's in-court identification testimony.
Having reviewed the record on appeal, and for the reasons set forth above, we conclude
that Browning has failed to demonstrate error in this appeal. Accordingly, we affirm the
judgment of the district court.
____________________
the perpetrator; the other witness was forced to move from where he was standing to avoid a collision with the
man who was leaving the area. One witness was fairly certain Browning was the man she had seen through a
pane of glass; while the other witness positively identified Browning. These identifications were made despite
the fact that Browning was not wearing the clothing described by the witnesses. In addition, one witness had
been previously shown another suspect prior to viewing Browning, but positively rejected that suspect. Finally,
very little time had elapsed between the initial viewing of the suspect and the show-up, further diminishing the
risk of memory loss or contamination.
____________
104 Nev. 274, 274 (1988) A.L.M.N., Inc. v. Rosoff
A.L.M.N., INC., a Nevada Corporation, dba LA MIRAGE HOTEL & CASINO; ROBERT L.
MAYER, Trustee of the Robert L. Mayer Trust of 1982, Dated June 22, 1982; ROBERT L.
MAYER, Individually, Appellants, v. ALLEN H. ROSOFF, MARY E. ROSOFF, and
BETTY ROSOFF, Co-Partners, MIRAGE MOTEL/MIRAGE HOTEL, Respondents.
No. 18189
June 24, 1988 757 P.2d 1319
Appeal from summary judgment and a permanent injunction. Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
104 Nev. 274, 275 (1988) A.L.M.N., Inc. v. Rosoff
Motel operators brought trade name infringement suit against competitors. The district
court granted summary judgment in favor of operators and enjoined competitors from using
word Mirage in any advertising. Competitors obtained stay of injunction and appealed. The
Supreme Court held that: (1) trade name Mirage Motel was arbitrary name, subject to
protection without further factual inquiry, rather than descriptive, in which case proof of
secondary meaning would have been required, even though motel was in desert; (2) whether
there was likelihood of confusion with regard to alleged infringement of trade name Mirage
Motel was factual issue, precluding summary judgment; and (3) logs prepared by operators
in attempt to document confusion that occurred were hearsay and were not admissible under
business records exception to hearsay rule.
Reversed and remanded.
Lionel, Sawyer & Collins and Charles H. McCrea, Jr., Las Vegas, for Appellants.
Rudiak, Oshins, Segal & Larsen and Monte Hall, Las Vegas, for Respondents.
1. Appeal and Error.
Trial court based its decision to grant permanent injunctive relief against use of trade name on initial
conclusion that summary judgment was appropriate, and thus, proper standard of review was that for
summary judgment, and not merely whether trial court abused its discretion.
2. Trade Regulation.
Whether, and to what extent, trade name is protectable depends upon its distinctiveness and strength.
3. Trade Regulation.
Right to corporate name arises from prior use, and first registration provides no absolute protection
against action for common law trade name infringement.
4. Trade Regulation.
Suggestive and arbitrary names, considered distinctive, are afforded legal protection against
infringement; however, generic names, considered nondistinctive, are not, and descriptive trade names
are protected only if secondary meaning has been proved.
5. Trade Regulation.
Suggestive trade names, the middle category between arbitrary and descriptive, are protected without
proof of secondary meaning, as in arbitrary category.
6. Trade Regulation.
Trade name Mirage Motel was arbitrary name, subject to protection without further factual inquiry,
rather than descriptive, in which case proof of secondary meaning would have been required, even
though motel was in desert.
104 Nev. 274, 276 (1988) A.L.M.N., Inc. v. Rosoff
7. Trade Regulation.
Senior user of trade name bringing infringement suit must prove that junior user's use of similar or
identical name is likely to confuse, cause mistake, or deceive appreciable number of reasonable customers.
8. Trade Regulation.
Likelihood of confusion in trade name infringement suit is considered factual issue in Nevada.
9. Trade Regulation.
Whether there was likelihood of confusion with regard to alleged infringement of trade name Mirage
Motel was factual issue, precluding summary judgment in trade name infringement suit.
10. Trade Regulation.
Foundational factors to consider in deciding likelihood of confusion issue in trade name infringement suit
include degree of similarity between trade names, similarity of services offered by users, marketing
channels used, evidence of actual confusion, strength of senior user's name, intent of junior user, and
degree of care likely to be exercised by purchasers.
11. Evidence.
Logs prepared by senior user of trade name for motel in attempt to document confusion that occurred
were hearsay and were not admissible under business records exception to hearsay rule; logs contained
written statements by desk clerks, were being used in attempt to prove matters such as fact that customer
phoned wrong hotel to illustrate customer confusion, and were first kept shortly before suit was
commenced. NRS 51.135, subd. 1.
OPINION
Per Curiam:
The Facts
Respondents Rosoffs own and operate the Mirage Motel, a forty-six-unit motel with a pool
and approximately eight employees. The Rosoffs have operated the Mirage Motel under the
same name since 1953.
In October, 1985, Robert Mayer registered, with the Secretary of State, the tradename La
Mirage Hotel and Casino for his business, previously known as the Ambassador Inn. At that
point, Rosoffs' tradename Mirage Motel was not registered with the Secretary of State.
Appellant A.L.M.N. apparently began leasing La Mirage from Mayer's trust and
refurbished the business, ordering signs, chips, stationery, and hotel supplies bearing the
name La Mirage. By January 1, 1986, A.L.M.N. had entered into contracts for such goods
and services and had invested a significant amount of money in items bearing the name La
Mirage. The La Mirage Hotel and Casino is a 320-room hotel and casino, employing
approximately 250 people.
In early January 1986, the Rosoffs began noticing that some people, including customers,
were confusing the two businesses.
104 Nev. 274, 277 (1988) A.L.M.N., Inc. v. Rosoff
They sent a letter to A.L.M.N., suggesting it cease using the name La Mirage, but A.L.M.N.
declined the suggestion. On January 14, 1986, the Rosoffs registered their tradename Mirage
Motel/Mirage Hotel with the Secretary of State. In February, they sued appellants, alleging,
among other causes of action, common law tradename infringement.
The Rosoffs sought summary judgment on their infringement claim. The district court
granted the motion, concluding appellants were liable for damages because they had infringed
the Rosoffs' tradename. After filing its initial order, the court amended it, adding a permanent
injunction enjoining appellants from using the word Mirage in any advertising. Appellants
obtained a stay of this injunction and appealed the order.
Discussion
The initial issue to be decided is what standard of review governs this appeal. A.L.M.N.
argues that a summary judgment standard of review applies: whether the lower court erred in
granting a motion because a genuine issue of material fact existed, assuming evidence most
favorable to the non-moving party to be true. The Rosoffs, however, argue that because the
lower court conducted a trial by affidavit and granted a permanent injunction, we merely
need to examine the record to determine whether the lower court abused its discretion in
making its decision.
[Headnote 1]
We are convinced, however, that the court based its decision to grant permanent injunctive
relief on its initial conclusion that summary judgment was appropriate. The court first granted
the summary motion, and later amended its summary judgment order to include the
permanent injunction as a remedy. Because the court's permanent injunction is based on a
legal determination that summary judgment could properly be granted under the
circumstances, we conclude the proper standard of review is that for summary judgment, and
not merely whether the court abused its discretion. See Coca-Cola Co. v. Overland, Inc., 692
F.2d 1250, 1253 (9th Cir. 1982) (summary judgment standard of review appropriate for trade
mark dispute when district court granted summary judgment and permanent injunction).
Therefore, we must decideassuming evidence favorable to A.L.M.N. as truewhether the
district court erred by concluding, on summary judgment, that A.L.M.N. infringed the
Rosoffs' tradename.
Common law tradename infringement falls within a broader category of prohibited unfair
competition. At the heart of [cases alleging] trademark infringement . . . are two questions:
Has a protectable right been created? Has it been infringed? beef & brew INC. v. BEEF &
BREW, INC., 3S9 F.Supp.
104 Nev. 274, 278 (1988) A.L.M.N., Inc. v. Rosoff
brew INC. v. BEEF & BREW, INC., 389 F.Supp. 179, 184 (D.Ore. 1974). Our review
focuses on these two issues.
[Headnotes 2, 3]
Whether, and to what extent, a tradename is protectable depends on its distinctiveness and
strength.
1
1 J. McCarthy, Trademarks and Unfair Competition 11:1, 11:24 (2nd ed. 1984)
(hereafter McCarthy). In this case, the lower court concluded:
Plaintiffs have used the names Mirage Motel/Mirage Hotel for more than thirty-three
(33) years as the tradename of their motel at 4613 Las Vegas Boulevard South, Las
Vegas, Nevada, and have thereby established that name as their common law tradename.
A.L.M.N. contends, however, that even though the Rosoffs used the name Mirage Motel
for over thirty years,
2
a material issue of fact exists about whether this name is entitled to
protection.
[Headnote 4]
Courts have developed the following litmus test to help measure a tradename's
distinctiveness. Tradenames are divided into four categories: generic, descriptive, suggestive
and arbitrary/fanciful. Suggestive and arbitrary names, considered distinctive, are afforded
legal protection against infringement. However, generic names, considered non-distinctive,
are not.
____________________

1
One reason a distinctive tradename is protected, but a non-distinctive tradename is not, is that a distinctive
tradename assumedly attains a greater public recognition and awareness of the service it represents. As a result,
the senior user is entitled to protection against others who attempt to usurp this recognition or otherwise confuse
customers.

2
Because the right to a corporate name arises from prior use, the fact that A.L.M.N. registered its tradename
first is irrelevant in determining whether the Rosoffs' tradename is entitled to protection. First registration
provides no absolute protection against an action for common law tradename infringement. As McCarthy notes:
The reality of the trademark world is that one who commences use of a new mark is in somewhat the
same position as a squatter who starts building a cabin (which the builder hopes will someday evolve into
a palace) on a vacant city lot. When sued as a trespasser and facing an injunction to tear down the
structure, it rings hollow for the squatter to argue that, But I didn't know somebody owned that land.
The obligation is to check out possible conflicts before investing time and money in a new mark.
McCarthy, supra, at 23:21. See also Comment, Utah's Business Name Statutes: An Open Invitation to
Litigation, 1983 B.Y.U. L. Rev. 795, 795 ([S]ecretary of State approval has little if anything to do with
acquiring business name rights.) (Footnote omitted.)
104 Nev. 274, 279 (1988) A.L.M.N., Inc. v. Rosoff
generic names, considered non-distinctive, are not. Descriptive tradenames are protected only
if secondary meaning
3
is proved.
An arbitrary tradename has been defined as one in common linguistic use but which,
when used with the goods or services in issue, neither suggest nor describe any ingredient,
quality, or characteristic of those goods and services. McCarthy, supra, at 11:4. The
Rosoffs argue MIRAGE Motel is clearly an arbitrary tradename, and therefore no issue of fact
exists about whether it is protected. The district court agreed.
On appeal, however, A.L.M.N. argues that MIRAGE Motel could be considered: (1) a
descriptive tradename, or (2) a weak suggestive name. It argues that the word MIRAGE
alludes to a desert, thus describing or suggesting the business's geographical situs. A.L.M.N.
argues that the correct categorization of a tradenamewhether a name is descriptive or
arbitraryis a genuine issue of material fact, mandating a trial. A.L.M.N. also notes that if
the name is considered descriptive, the Rosoffs must show that it has secondary meaning
before it is entitled to protection, which is also a factual determination. Both latter assertions
are accurate general statements of the law.
4

[Headnote 5]
A geographically descriptive tradename has been defined as one which designates
geographical location and would tend to be regarded by buyers as descriptive of the
geographic location or origin of the goods or services.
5
McCarthy, supra, at 14:2. As
noted, geographically descriptive corporate names are protected only if secondary
meaning is proved.
____________________

3
Secondary meaning has been described as consumer acceptance and recognition of [a descriptive trade
name] as denoting only one seller or source. McCarthy, supra, at 11:9.


The categorization of a tradename is normally a factual determination. E.g., WSM, Inc. v. Hilton, 724 F.2d
1320, 1326 (8th Cir. 1984) (citing 3 Callman, The Law of Unfair Competition, Trademarks and Monopolies 66
(Supp. 1982)); McCarthy, supra, at 11:1 n.6 However, on occasion, when there can be no genuine dispute
about the category of a tradename, courts have determined, on summary judgment, the category of a tradename
or mark. E.g., Gimex, Inc. v. JS & A Group, Inc., 699 F.2d 901 (7th Cir. 1983); Team Cent. Inc. v. Xerox Corp.,
606 F.Supp. 1408 (D.Minn. 1985).

5
McCarthy suggests that questions such as the following help determine whether a tradename is
geographically descriptive:
1. Is the business name the place or region from which the goods or services are produced or exist?
2. Is the geographic term likely to denote to reasonable customers that the goods or services are
produced or offered in the region or place named?
3. Is the place or region named noted for these particular goods or services?
McCarthy, supra, at 14:3.
104 Nev. 274, 280 (1988) A.L.M.N., Inc. v. Rosoff
noted, geographically descriptive corporate names are protected only if secondary meaning is
proved. A suggestive tradename is one in which use of imagination, thought and perception
[is necessary] to reach a conclusion as to the nature of the goods. Stix Prods., Inc. v. United
Merchants & Mfrs., Inc., 295 F.Supp. 479, 488 (S.D.N.Y. 1968). Suggestive tradenames, a
middle category falling between arbitrary and descriptive, are protected without proof of
secondary meaning, as in the arbitrary category.
6

[Headnote 6]
Determining the correct category of tradenames can be difficult. One court noted
although meant as pigeon holes, these [categories] are instead central tones in a spectrum;
they tend to merge at their edges and are frequently difficult to apply. Soweco, Inc. v. Shell
Oil Co., 617 F.2d 1178, 1183 (5th Cir. 1980), cert. denied, 450 U.S. 981 (1981). As a result,
argument about correct categorization is sometimes easy. This, together with the favorable
standard of review, works to A.L.M.N.'s favor in deciding this issue.
However, even with these advantages, A.L.M.N.'s argument that MIRAGE is descriptive
or suggestive of Rosoffs' business's geographic location is strained. It is one thing to name a
business the SILVER STATE Casino, the LAS VEGAS Billiards, or the CARSON CITY
Cleaners; it is another to name it after a phenomenon or thing somehow connected with the
topography of a general geographic area. If MIRAGE is considered geographically descriptive
of the business, arguably so would many other names that, by some vast leap of logic,
tangentially implicate a business's situs.
7
Following A.L.M.N.'s logic, any name remotely
connected with the geographic location of a business apparently would be protected only if
secondary meaning could be proved in a lawsuit. However, cases finding tradenames to be
geographically descriptive are considering, for the most part, a name or nickname of towns,
regions, cities, and states, rather than a characteristic or phenomenon somehow connected
with these entities.S As a result, we conclude that the lower court's determination that
there was no material issue of fact about the classification of the tradename "Mirage
Motel" was correctit is clearly an arbitrary name, subject to protection without further
factual inquiry.9
____________________

6
A.L.M.N. argues this rule is not absolute, asserting that weak suggestive marks need proof of secondary
meaning before they are protected. A.L.M.N. cites a couple of cases supporting this purported exception to the
general rule. Most courts, however, apparently end their analysis after determining that a mark is suggestive.

7
Consider, for example, the following names, each with a desert connection: Kangaroo Rat Motel, the Sands
Hotel, and Hesperocallis Undulata Motel. Although linked to warm deserts, and therefore Las Vegas, these
names are sufficiently attenuated from descriptiveness, such that protection should be afforded without proof of
secondary meaning. They fall, at best, in a twilight zone of terms whose geographical significance . . . is
dubious. McCarthy, supra, at 14:2.
104 Nev. 274, 281 (1988) A.L.M.N., Inc. v. Rosoff
these entities.
8
As a result, we conclude that the lower court's determination that there was
no material issue of fact about the classification of the tradename Mirage Motel was
correctit is clearly an arbitrary name, subject to protection without further factual inquiry.
9

[Headnote 7]
As noted, the second step in proving infringement is showing that the junior user infringed
the senior user's protected tradename. The senior user must prove that the junior user's use of
a similar or identical tradename is likely to confuse, cause mistake, or deceive an
appreciable number of reasonable customers. McCarthy, supra, at 23:1.
McCarthy notes that Traditionally, the law has classified likelihood of confusion as an
issue of fact. Id. at 23:22 (footnote omitted), 32:37 (footnote omitted). However, some
courts view this ultimate question as a legal issue and others view it as a mixed question of
law and fact.
10
See generally Comment, Appellate Review of Lanham Act Violations: Is
Likelihood of Confusion a Question of Law or Fact? 38 Sw. L.J. 743 (1984); Comment,
Likelihood of Confusion Under the Lanham Act: A question of Fact, a Question of Law, or
Both?, 73 Ky. L.J. 235 (1984-85); McCarthy, supra, at 23:22. Accordingly, the scope and
manner of appellate review differs.
11
[Headnotes S, 9]
____________________

8
We also note that Las Vegas is not the only city by a warm desert. As well, mirages are not confined solely
to warm desert locations. They commonly occur over hot pavement or at sea. See The Concise Columbia
Encyclopedia 550 (1983). As a result, the word mirage does not necessarily pinpoint any specific geographic
business situs, but has a logical connection with just about every town or city in North America. Therefore, even
assuming some geographic connotation, the term Mirage is not likely to connote, to reasonable customers, that
the motel is located in Las Vegas.

9
Another underlying rationale for limiting the protection of geographically descriptive names is missing in
this appeal. Limited protection is provided, in part, to prevent users from monopolizing descriptive names
equally applicable to a multitude of businesses or products. E. Vandenburgh, Trademark Law and Procedure
4:30 (2nd ed. 1968). The name Mirage, however, presents no such problem.

10
How the issue is categorized affects appellate review of tradename infringement cases. Appellate courts in
those jurisdictions considering likelihood of confusion a legal issue enjoy greater latitude reviewing appeals
based on this issue than those considering it factual. Courts in those jurisdictions might also more readily grant
summary judgment.

11
In this case, the district court concluded that the issue was legal, apparently basing its conclusion on a 1975
Ninth Circuit case. However, in a more recent case, Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352 (9th
Cir. 1985), the Ninth Circuit changed its position; it now views likelihood of confusion as a factual issue. (For
the sake of accuracy, uniformity, and consistency with the predominant view in other circuits, we will hereafter
review findings of likelihood of confusion under the clearly erroneous standard.) Id. at 1356 (footnote omitted).
104 Nev. 274, 282 (1988) A.L.M.N., Inc. v. Rosoff
[Headnotes 8, 9]
After consideration of the various approaches other courts have taken, we conclude that, in
Nevada, likelihood of confusion will be considered a factual issue. We therefore conclude
that the district court, in this case, erred by determining the likelihood of confusion issue as a
matter of law.
[Headnote 10]
In determining whether it is likely an appreciable number of consumers will be confused
by similar tradenames, courts, regardless of whether they view this ultimate decision as
factual or legal, have considered the following factors:
1. The degree of similarity between the tradenames, including appearance, pronunciation,
and suggestion of the tradenames;
2. The similarity of services offered by the users;
3. The marketing channels used by the junior and senior users;
4. The evidence of actual confusion;
5. The strength of the senior user's name;
6. The intent of the junior user in adopting the tradename; and
7. The degree of care likely to be exercised by purchasers.
See Levi Strauss, 778 F.2d at 1364 (9th Cir. 1985) (Nelson, J., dissenting); Wells Fargo &
Co. v. Wells Fargo Express Co., 358 F.Supp. 1065, 1106-07 (D.Nev. 1973) (quoting Chester
Barrie, Ltd. v. Chester Laurie, Ltd., 189 F.Supp. 98, 101 (S.D.N.Y. 1960)), vacated, 556 F.2d
431 (9th Cir. 1977); McCarthy, supra, at 23:4.
Because these foundational facts must be considered before determining the ultimate issue
of likelihood of confusion,
12
summary judgment resolution of the ultimate issue is usually
inappropriate, regardless of whether it is considered legal or factual. One court has noted:
By their very nature some of these factors are so hazy and grayish in nature that a
summary judgment cannot be granted merely upon perusal of affidavits, except in those
rare instances where the facts are so black and white in nature that it can be stated
unequivocally that there is no genuine issue as to any material fact and no issues to
be resolved at a trial.
____________________

12
In Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2nd Cir. 1969), cert.
dismissed 396 U.S. 1054 (1970), the court noted:
These factors are variable and relative and no single one, because of its presence or absence, is, in
itself, determinative of a case. Rather, the method of approach requires the trial court to consider and
weigh the evidence relative to each of these points and such other points as, in the particular
circumstances before it, the court finds applicable; then, from a balancing of the conclusions reached on
all these factors, the court decides whether or not the parties are entitled to the relief or protection sought.
104 Nev. 274, 283 (1988) A.L.M.N., Inc. v. Rosoff
genuine issue as to any material fact and no issues to be resolved at a trial.
National Color Laboratories, Inc. v. Philips Foto Co., 273 F.Supp. 1002, 1004 (S.D.N.Y.
1967). Another court adds:
Appellate courts have cautioned that the questions ordinarily involved in the
trade-mark cases do not readily lend themselves to summary judgment.
. . . .
It is evident that the likelihood of confusion test is one which is particularly
ill-adapted to resolution by summary judgment.
Wells Fargo, 358 F.Supp. at 1103-07 (D.Nev. 1973).
13

After consideration of the parties' briefs, oral argument, and the record, we are convinced
that material issues of fact exist, in this case, about the likelihood of confusion, including the
foundational determinations. A.L.M.N. points out some differences between the two names,
14
the nature of the businesses, and the marketing channels used.
15
A.L.M.N. also alleges,
with some support in the record, that the evidence of actual confusion may be slight in
relation to the number of customers who have not been confused by the names. Because we
are reviewing a summary judgment order, we are bound to accept as true all evidence and
inferences favorable to the party against whom the judgment was rendered. Renaud v. 200
Convention Center Ltd., 102 Nev. 500, 728 P.2d 445 (1986). This standard of review,
combined with the inherently factual inquiry of the likelihood of confusion test and the facts
of this case, mandates reversal of the district court decision.
16
[Headnote 11]
[Headnote 11]
____________________

13
See also Levi Strauss, 778 F.2d at 1356 n.5 (trial courts disfavor deciding trademark cases in summary
judgments because the ultimate issue is so inherently factual.)

14
A.L.M.N. also suggests, citing 7-11 Minit Markets, Inc. v. Southland Corp., 301 F.Supp. 1000 (D.Nev.
1969) as support, that because the Secretary of State allowed both names to be registered, a presumption that the
two names are not deceptively similar exists. We reject this contention. Although the Secretary of State may
have a duty to reject deceptively similar tradenames (see Op. Nev. Att'y Gen. 151 (1918)), in common law
tradename infringement actions in this state the courts, and the courts alone, determine whether a name is
deceptively similar. See generally, Comment, Utah's Business Name Statutes: An Open invitation to
Litigation, 1983 B.Y.U. L. Rev. 795, 798-99.

15
See generally, Lininger v. Desert Lodge, 160 P.2d 761 (Ariz. 1945); Hotel Syracuse v. Motel Syracuse,
127 N.Y.S.2d 485 (App. 1954), aff'd, 130 N.E.2d 620 (1955).

16
We do not, however, conclude that summary judgment is never appropriate in common law tradename
actions where likelihood of confusion is an issue. One could conceive of situations where, even viewing the
evidence in
104 Nev. 274, 284 (1988) A.L.M.N., Inc. v. Rosoff
[Headnote 11]
Finally, we must decide whether the lower court erroneously determined that certain logs,
prepared in a wise attempt to document the confusion that occurred, are inadmissible hearsay.
The Rosoffs submitted, as proof of the actual confusion that has occurred, three logs,
prepared by the desk clerks and Mrs. Rosoff, allegedly documenting approximately five
hundred incidents where telephone callers, taxicab drivers, customers, and others confused
the two businesses. These entries reflect, for example, a variety of telephone calls seeking
guests not at the Mirage Motel, confirming non-existent reservations, and the like.
Hearsay is an out of court statement offered in evidence to prove the truth of the matter
asserted.
17
The written statements made by the desk clerks (e.g., on May 1 Mr. X phoned
the Mirage, intending to reach La Mirage) were made out of court, at the motel. Moreover,
these statements were being used in an attempt to prove the truth of the matter asserted (that
Mr. X, confused, phoned the Mirage on May 1), to illustrate that further confusion by
customers is likely. As a result, the district court correctly concluded that the logs contained
hearsay.
The Rosoffs argue, however, that the logs comply with the business exception to the
hearsay rule.
18
In Miranda v. State, 101 Nev. 562, 566, 707 P.2d 1121, 1124 (1985), cert.
denied, 475 U.S. 1031 (1986), we noted that the business records exception to the hearsay
rule generally permits a party to introduce as evidence reports made during the regularly
conducted course of business. The district court concluded, however, that these logs were
not made in the regular course of business. We agree.
In Palmer v. Hoffman, 318 U.S. 109 (1943), the U.S. Supreme Court considered signed
statements about an accident made by a railroad employee shortly after the accident, but
before his death. The court concluded that this report did not fall within the business record
exception, stating Unlike payrolls, accounts receivable, accounts payable, bills of lading and
the like, these reports are calculated for use essentially in the court, not in the business.
____________________
a light most favorable to the non-moving party, the facts are so black and white that a full trial would be
unnecessary.

17
NRS 51.035.

18
NRS 51.135(1) 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 of the custodian
or other qualified witness, is not inadmissible under the hearsay rule unless the source of information or
the method or circumstances of the preparation indicate lack of trustworthiness.
104 Nev. 274, 285 (1988) A.L.M.N., Inc. v. Rosoff
reports are calculated for use essentially in the court, not in the business. Their primary use is
in litigation, not in railroading. Id. at 114. See also D. Binder, Hearsay Handbook 8.05
(2nd ed. 1983) (As a general rule, records that are prepared for purposes of litigation are not
encompassed by [the business record] exception to the hearsay rule.).
The facts suggest that the Rosoffs' logs were probably prepared primarily for the purpose
of litigation, not in the ordinary course of their motel business. The clerks began to keep the
logs in January 1986, shortly before the lawsuit commenced. These records have little
purpose other than as evidence for litigation. The logs are not, in the Supreme Court's words,
necessary for moteling, but were instead indications of the confusion that resulted after La
Mirage Hotel and Casino opened.
As a result, one of the indicia of trustworthiness for business records does not exist. In
Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir. 1980), cert. denied, 456 U.S. 927
(1982), the court noted 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.
19
This is, we add, particularly true when the maker of the record prepares the
documents without knowledge of their probable use in impending litigation. However, in this
case, the Rosoffs would not be relying on the records of misplaced telephone calls, lost
taxicab drivers, or irate tourists in the normal course of their motel business, and they knew
of impending litigation. As a result, one of the bases for assuming business records' accuracy,
under this exception to the hearsay rule, does not exist;
20
we therefore conclude that the
district court did not err by striking the logs as inadmissible hearsay, not falling within the
business record exception.
In conclusion, in light of the above analysis, we reverse and remand this action for trial.
However, we emphasize that we express no opinion on the validity or veracity of Rosoffs'
cause of action for tradename infringement, or A.L.M.N.'s defense against this cause of
action.
____________________

19
See also S. Gard, 4 Jones on Evidence 575 (1972) (citations omitted):
The element of unusual reliability of business records is said variously to be supplied by systematic
checking, by regularity and continuity which produce habits of precision, by actual experience of
business in relying upon them, or by a duty to make an accurate record as part of a continuing job or
occupation.

20
See S. Salzburg, K. Redden, Federal Rules of Evidence Manual 832 (4th ed. 1986). The authors note that
several courts have expressed suspicion about the utility of business records when they are offered to support
the case of the party who prepared the records. This concern, of course, can be eliminated by sufficient proof of
trustworthiness.
104 Nev. 274, 286 (1988) A.L.M.N., Inc. v. Rosoff
against this cause of action. We conclude only that, given the factual context of this action,
the nature of the likelihood of confusion test, and the standard of review, this cause of action
should not have been summarily decided. Accordingly, we reverse and remand.
____________
104 Nev. 286, 286 (1988) Rosemond v. State
O'NEAL ROSEMOND, Appellant v. THE STATE
OF NEVADA, Respondent.
No. 18878
June 24, 1988 756 P.2d 1180
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; J. Charles Thompson,
Judge.
Defendant entered guilty plea to one count of possessing credit card without consent of
owner and one count of possessing stolen vehicle, and was sentenced by the district court to
term of six years' imprisonment on credit card offense and consecutive term of ten years' on
vehicle offense. Defendant appealed. The Supreme Court held that district court was not
required to inform defendant that maximum sentences on two counts could be imposed
consecutively prior to accepting his guilty plea.
Affirmed.
O'Neal Rosemond, in Proper Person, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County,
for Respondent.
Criminal Law.
Before accepting defendant's guilty plea on two separate counts, district court was not required to inform
him that maximum sentence on two counts could be imposed consecutively.
OPINION
Per Curiam:
On March 27, 1985, appellant entered a guilty plea to one count each of possessing a credit
card without consent of the owner and possessing a stolen vehicle.
1
During the plea canvass,
appellant stated that he understood that he could receive a maximum sentence of six
years imprisonment on the credit card offense and a maximum sentence of ten years on
the charge involving the stolen vehicle.
____________________

1
In exchange for appellant's plea, the state agreed to recommend dismissal of two other charges (burglary and
unauthorized sale of credit cards).
104 Nev. 286, 287 (1988) Rosemond v. State
appellant stated that he understood that he could receive a maximum sentence of six years
imprisonment on the credit card offense and a maximum sentence of ten years on the charge
involving the stolen vehicle. Based upon the totality of appellant's representations at the plea
canvass, the district court determined that appellant's pleas were entered freely and
voluntarily with full knowledge of the possible consequences. Consequently, the district
court accepted appellant's pleas. The court subsequently sentenced appellant to a term of six
years imprisonment on the credit card offense and a consecutive term of ten years on the
vehicle offense.
On March 18, 1987, appellant filed a petition for a writ of habeas corpus challenging the
validity of his guilty pleas. The district court summarily dismissed appellant's petition without
appointing counsel or conducting an evidentiary hearing. This appeal followed. We have
considered the record on appeal, and we conclude that appellant cannot demonstrate error on
appeal and that further briefing and oral argument are not warranted.
2
See Luckett v.
Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976).
Appellant contended that his pleas were not knowingly and intelligently entered because
he had not been fully informed of the consequences of the pleas and the full range of
punishments which could be imposed. See NRS 174.035(1); Director, State Prison v. Powell,
101 Nev. 736, 710 P.2d 73 (1985). Specifically, appellant noted that the district court failed
to inform him that the six-year and ten-year sentences could be imposed consecutively,
resulting in a maximum sentence of sixteen years. Appellant argued that this failure rendered
his pleas constitutionally infirm. We disagree. In Director, State Prison v. Powell, 101 Nev.
736, 710 P.2d 73 (1985), this court held that before accepting a guilty plea, a district court
must inform a defendant of mandatory consecutive sentences. We decline, however, to
extend the rule of Powell to cases involving possible consecutive sentences. Where a
defendant is pleading to separate counts and understands the maximum sentence which may
be imposed upon each count, the possibility that the sentences may be imposed consecutively
is implicity understood and is not a consequence that must be explained to the defendant. See
United States v. Hamilton, 568 F.2d 1302 (9th Cir.), cert. denied, 436 U.S. 944 (1978);
Paradiso v. United States, 482 F.2d 409 (3rd Cir. 1973). In State v. Wesley, 640 P.2d 177
(Ariz. 1982), the Supreme Court of Arizona perceptively observed:
[T]he possibility of receiving consecutive sentences is not a . . . consequence that
must be disclosed to the defendant under Boykin v. Alabama, 395 U.S. 23S, S9 S.Ct.
____________________

2
We have also considered the supplemental documents submitted by appellant in proper person on May 27,
1988.
104 Nev. 286, 288 (1988) Rosemond v. State
a . . . consequence that must be disclosed to the defendant under Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is no constitutional right to
receive concurrent sentences for two separate offenses. Furthermore, we are of the
opinion that the requirement of Rule 17.2(b) [requiring the court to inform a defendant
of the range of possible sentences for the offense to which the plea is offered] as well as
those of Boykin do not apply to a consequence so obvious as separate punishments for
separate crimes. Appellant must be presumed to have been aware of the possibility of
consecutive sentencing. We note that the ninth circuit is in accord with our holding that
a trial court is not required to advise a defendant of the possibility of consecutive
sentences before accepting his guilty plea.
Wesley, 640 P.2d at 179 [citations omitted]. We agree with the reasoning of Wesley. Because
the district court informed appellant of the maximum sentence which could be imposed upon
each count, we conclude that appellant was fully informed of the consequences of the plea
and the range of punishments which could have been imposed. Appellant's pleas were,
therefore, voluntarily and knowingly entered. See Bryant v. State, 102 Nev. 268, 721 P.2d
364 (1986). Because appellant's contentions lacked merit, the district court properly denied
appellant's petition without conducting an evidentiary hearing or appointing counsel. See
Hargrove v. State, 100 Nev. 498, 686 P.2d 222 (1984). Accordingly, we hereby affirm the
order of the district court.
____________
104 Nev. 288, 288 (1988) Canada v. State
LESTER FRANK CANADA and MICHAEL SMITH, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 18268
LESTER FRANK CANADA and MICHAEL SMITH, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 18499
June 24, 1988 756 P.2d 552
Case No. 18268. Appeal from convictions upon jury verdict for robbery with use of a
deadly weapon, battery with use of a deadly weapon, battery, conspiracy to commit burglary
with use of a deadly weapon, and burglary. Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
104 Nev. 288, 289 (1988) Canada v. State
Case No. 18499. Appeal from convictions upon jury verdict for conspiracy to commit
robbery, burglary, and robbery with use of a deadly weapon. Eighth Judicial District Court,
Clark County; Myron E. Leavitt, Judge.
Defendants were convicted in the district court of robbery and multiple crimes incident to
each robbery. Defendants appealed and appeals were consolidated. The Supreme Court held
that: (1) substantial evidence supported finding that defendant voluntarily consented to
apartment search; (2) officer did not exceed scope of consent to search; (3) evidence of
another robbery was admissible for limited purpose of proving identities of perpetrators; and
(4) at-the-scene identifications of defendant by eyewitnesses to robbery were replete with
indicia of reliability, and due process was not violated.
Case No. 18268, affirmed; Case No. 18499, affirmed.
Beury & Schubel, Las Vegas, for Appellants.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Searches and Seizures.
Substantial evidence supported finding that defendant voluntarily consented to apartment search and that
this consent was not later withdrawn. U.S.C.A.Const. Amend. 4.
2. Searches and Seizures.
Search conducted pursuant to consent must be limited to terms of consent. U.S.C.A.Const. Amend. 4.
3. Searches and Seizures.
By looking underneath bed, and discovering shotguns, officer did not exceed scope of defendant's
consent for police to look around the apartment for other male subjects. U.S.C.A.Const. Amend. 4.
4. Criminal Law.
Evidence of another robbery was admissible for limited purpose of proving identities of perpetrators, in
view of difficulty in identifying perpetrators and high degree of similarity between crimes. NRS 48.045,
subd. 2.
5. Criminal Law.
Accused has no absolute or constitutional right to a line-up.
6. Criminal Law.
Referring to subject as a suspect is not by itself an impermissible suggestion in identification
procedure.
7. Criminal Law.
Use of handcuffs or other indicia of custody will not invalidate show-up, at least where necessary for
prompt and orderly presentation of suspect, consistent with protection of officers and witnesses.
104 Nev. 288, 290 (1988) Canada v. State
8. Criminal Law.
Even if at-the-scene identification procedure was unnecessarily suggestive, resulting testimony need not
be excluded if it is determined that it was reliable.
9. Criminal Law.
Reliability of identification procedure is determined by weighing corrupting effect of suggestive
identification against opportunity of witness to view the criminal at time of the crime, witness' degree of
attention, accuracy of his prior description of the criminal, level of certainty demonstrated at the
confrontation, and time between crime and confrontation.
10. Constitutional Law; Criminal Law.
At-the-scene identifications of defendant by eyewitnesses to robbery were replete with indicia of
reliability, and due process was not violated. U.S.C.A.Const. Amend. 14.
OPINION
Per Curiam:
Lester Frank Canada (Canada) and Michael Smith (Smith) were accused of jointly
participating in two armed robberies. They were tried together in separate jury trials for each
robbery and convicted of multiple crimes incident to each robbery.
1
Their appeals from these
convictions were ordered consolidated for oral argument.
Canada and Smith challenge their convictions for the robbery of the Sit N Bull lounge in
Las Vegas on two grounds. First, Canada and Smith contend that the shotguns that they used
in the robbery should not have been introduced into evidence because they were the fruits of
an illegal search of their apartment. Second, Canada and Smith contend that evidence of the
other robbery that they were accused of committing, the robbery of the Charleston Heights
Liquors in Las Vegas, should not have been allowed into evidence to prove their identities
because such evidence was more prejudicial than probative.
[Headnote 1]
Regarding their first challenge to the Sit N Bull convictions, Canada and Smith claim that
Smith's consent to the warrantless search of their apartment was not given voluntarily. This
claim is without merit. Voluntariness is a question of fact to be determined from the totality
of the circumstances.
____________________

1
Canada and Smith were convicted of the following crimes incident to the robbery of the Sit N Bull lounge
in Las Vegas: robbery with use of a deadly weapon, battery with use of a deadly weapon, battery, conspiracy to
commit burglary with use of a deadly weapon, and burglary.
For the burglary of the Charleston Heights Liquors in las Vegas, Canada and Smith were convicted of the
following crimes: conspiracy to commit robbery, burglary, and robbery with use of a deadly weapon.
104 Nev. 288, 291 (1988) Canada v. State
mined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218
(1973); Davis v. State, 99 Nev. 25, 656 P.2d 855 (1983). The record contains substantial
evidence to support the trial court's finding that Smith voluntarily consented to the apartment
search and that this consent was not later withdrawn. See Tomarchio v. State, 99 Nev. 572,
665 P.2d 804 (1983) (trial court's finding of fact should not be disturbed on appeal if
supported by substantial evidence).
[Headnote 2]
Canada and Smith further claim that the shotguns were illegally seized because the area
where the shotguns were found was outside the scope of any consent that might have been
given and because the shotguns were not in plain view. We agree that a search conducted
pursuant to consent must be limited to the terms of the consent. United States v. Sealy, 830
F.2d 1028 (9th Cir. 1987); People v. Thiret, 685 P.2d 193 (Colo. 1984). Whether the scope of
consent has been exceeded is a factual question to be determined by examining the totality of
the circumstances. Sealy, 830 F.2d at 1032.
[Headnote 3]
The shotguns were discovered by a police officer as he lifted the mattresses on a bed in
order to search underneath the bed for a potentially armed and dangerous subject.
2
Viewing
the circumstances in their totality, we conclude that by looking underneath the bed the officer
did not exceed the scope of Smith's express consent for the police to look around the
apartment for other male subjects.
3
It has long been settled that objects falling in the plain
view of an officer who has a right to be in the position to have that view are subject to seizure
and may be introduced in evidence.' Woerner v. State, 85 Nev. 281, 284, 453 P.2d 1004,
1005 (1969) (citations omitted). It follows that since the officer lawfully lifted the mattresses,
the subsequent inadvertent discovery of the shotguns falls within the ambit of the plain
view doctrine.
Canada's and Smith's second challenge to the Sit N Bull convictionsthat evidence of the
other robbery should not have been admittedis also without merit. Nevada's Evidence Code
prohibits the use of crimes, wrongs, or acts as evidence of a person's character to prove
conduct.
____________________

2
This is the recommended method for a police officer to search under a bed for a potentially armed and
dangerous subject.

3
As the police officer who found the shotguns had already discovered Canada hiding in another room in the
space between a bed and the wall with a sheet pulled over him, it was logical for the officer to look for other
suspects under the bed where the shotguns were ultimately found.
104 Nev. 288, 292 (1988) Canada v. State
person's character to prove conduct. NRS 48.045(2).
4
Such evidence may, however, be
admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident in those cases where such evidence is more probative than
prejudicial. NRS 48.045(2); NRS 48.035; Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983);
Williams v. State, 95 Nev. 830, 603 P.2d 694 (1979). The decision to admit such evidence
rests within the sound discretion of the trial court. Brinkley v. State, 101 Nev. 676, 708 P.2d
1026 (1985).
[Headnote 4]
The trial court admitted evidence of the Charleston Heights robbery at the Sit N Bull trial
for the limited purpose of proving the identities of the perpetrators of the Sit N Bull robbery,
pursuant to NRS 48.045(2). Canada and Smith contend that the trial court erred in admitting
this evidence because the danger of prejudice outweighed its probative value. Specifically,
Canada and Smith insist that the evidence was improperly admitted because (1) the witnesses
to the Sit N Bull robbery were less than definite in their identifications, and (2) there was
nothing unique about the modus operandi allegedly exhibited in the two robberies.
In Reed v. State, 95 Nev. 190, 591 P.2d 274 (1979), we explained that questions raised as
to the credibility of the witnesses' trial identification of appellant served to highlight the
necessity for additional evidence which could help establish the identity of the perpetrator,
and buttress the decision of the trial court to admit evidence of other crimes for that purpose.
Reed, 95 Nev. at 193, 591 P.2d at 276. Contrary to the assertions of Canada and Smith, the
difficulty in identifying the perpetrators of the Sit N Bull robbery argues for, rather than
against, the admission of evidence of the Charleston Heights robbery.
In Coty v. State, 97 Nev. 243, 627 P.2d 407 (1981), we stated that [e]vidence of prior
criminal behavior may only be admitted to prove identity when its prejudicial effect is
outweighed by the evidence's probative value and when that prior behavior demonstrates
characteristics of conduct which are unique and common to both the defendant and the
perpetrator whose identity is in question."
____________________

4
NRS 48.045 provides in part:
1. Evidence of a person's character or a trait of his character is not admissible for the purpose of
proving that he acted in conformity therewith on a particular occasion. . . .
. . . .
2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
104 Nev. 288, 293 (1988) Canada v. State
question. Coty, 97 Nev. at 244, 627 P.2d at 408 (emphasis in original).
Canada and Smith claim that there was nothing unique about the two robberies: a
conspirator would simply enter a bar, case the place, and then return later with more men to
commit a brutal, straightforward armed robbery. This argument is singularly unconvincing.
The many similarities between the two crimes make evidence of the second highly probative
of the identities of the perpetrators of the first. These similarities include the following: both
robberies took place in deserted bars very late at night; in both robberies one of the
perpetrators first entered alone and ordered a beer in order to case the bar; in both robberies at
least one of the perpetrators wore a mask; and in both robberies the perpetrators were armed
with shotguns. Finally, the modus operandi common to the two robberies was unique in
comparison with other robberies in the manner in which the perpetrators savaged their
victims. We conclude that the difficulty in identifying the perpetrators coupled with the high
degree of similarity between the crimes made the evidence of other robbery more probative
than prejudicial.
[Headnote 5]
Canada and Smith also challenge their convictions for the robbery of the Charleston
Heights Liquors on the sole ground that the at-the-scene identifications of them were so
impermissibly suggestive that the identifications denied them a fair trial.
5
After they were
apprehended, Canada and Smith were placed in front of a police car in which two
eyewitnesses to the Charleston Heights Liquors robbery were sitting; both witnesses
identified the pair. Canada and Smith claim the following factors made the identification
procedure unnecessarily suggestive: (1) they were brought out in handcuffs and surrounded
by police officers; (2) they were made to kneel in front of the patrol car; (3) the two witnesses
were told that the officers had persons in custody that may have been the suspects; and (4) the
two witnesses were sitting together in the police car as they viewed Canada and Smith.
The test is whether upon review of the totality of the circumstances the confrontation
conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken
identification that [appellant] was denied due process of law.' Banks v. State, 94 Nev. 90,
94, 575 P.2d 592, 595 (1978) (quoting Stoval v. Denno, 388 U.S. 293, 301-302 (1967)).
____________________

5
Canada and Smith also contend that they were entitled to a formal police line-up. An accused has no
absolute or constitutional right to a line-up. United States v. Kelly, 516 F.Supp. 493 (D.Nev. 1981).
104 Nev. 288, 294 (1988) Canada v. State
[Headnotes 6, 7]
We note initially that referring to a subject as a suspect is not by itself an impermissible
suggestion. United States v. Kessler, 692 F.2d 584 (9th Cir. 1982). We also believe that
[t]he use of handcuffs or other indicia of custody will not invalidate a show-up, at least
where necessary for the prompt and orderly presentation of the suspect, consistent with
protection of the officers and witnesses. Kessler, 692 F.2d at 586. Considering the violent
nature of the crimes in the present case, it is difficult to argue that handcuffs were not
warranted in the identification procedure.
[Headnotes 8, 9]
Even if the at-the scene identification procedure was unnecessarily suggestive, the
resulting testimony need not be excluded if it is determined that it was reliable. Banks, 94
Nev. at 96, 575 P.2d at 596 (citing Manson v. Brathwaite, 432 U.S. 98 (1977)). The reliability
of an identification procedure is determined by weighing the corrupting effect of the
suggestive identification against the following factors: the opportunity of the witness to
view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his
prior description of the criminal, the level of certainty demonstrated at the confrontation, and
the time between the crime and the confrontation. Brathwaite, 432 U.S. at 114.
[Headnote 10]
We hold that the record is replete with indicia of reliability, measured by the criteria of
Brathwaite, and that due process was not violated.
Careful scrutiny of Canada's and Smith's remaining contentions reveals them to be
meritless. Accordingly, we affirm the judgments of conviction.
____________
104 Nev. 294, 294 (1988) Holliday v. McMullen
CRAIG K. HOLLIDAY, Appellant, v. TERRENCE McMULLEN as Guardian Ad Litem for
JOHN KELLY HOLLIDAY and PETER HOLLIDAY, Respondents.
No. 18227
June 24, 1988 756 P.2d 1179
Appeal from judgment of the district court awarding respondents compensatory and
punitive damages. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Heir's sons, through guardian ad litem, sued heir alleging that heir had murdered their
grandmother. The district court entered judgment in favor of guardian, and appeal followed.
104 Nev. 294, 295 (1988) Holliday v. McMullen
judgment in favor of guardian, and appeal followed. The Supreme Court held that trial court
could not make civil determination that heir had murdered his mother after heir had
previously been acquitted of murder charges.
Reversed.
[Rehearing denied August 16, 1988]
Gardner & McNabney, Reno, for Appellant.
Hamilton & Lynch, Reno, for Respondents.
1. Descent and Distribution.
Only a criminal conviction of murder will preclude an individual from succeeding to a victim's estate.
NRS 134.007.
2. Judgment.
Trial court could not make civil determination that heir was guilty of murdering his mother after heir had
previously been acquitted of murder charges. NRS 134.007.
OPINION
Per Curiam:
Mary Holliday was brutally murdered in her home during the evening of June 5, 1985.
Appellant Craig K. Holliday was the last known person to see Mary Holliday, his mother,
alive. A grand jury returned an indictment against Holliday on the charge of murder with the
use of a deadly weapon. Holliday was subsequently tried by a jury and acquitted of all
charges. Holliday then succeeded to his mother's estate pursuant to NRS 134.090. Holliday's
two sons, respondents herein, through their Guardian ad Litem, Terrence McMullen,
subsequently filed a civil action against Holliday in July, 1986. Respondents claimed that
Holliday murdered their grandmother to keep them from inheriting her estate because
Holliday knew of her intent to disinherit him.
[Headnotes 1, 2]
After trial, the district court determined that appellant murdered his mother and was
ineligible to succeed to his mother's estate pursuant to NRS 134.007.
1
The district judge
entered a decision in favor of respondents on their claims of wrongful death, intentional
interference with an advantageous economic relationship, and imposition of a constructive
trust. The court awarded compensatory damages in an amount equal to the value of the
decedent's estate {$350,000) and punitive damages in a like amount.
____________________

1
NRS 134.007 provides: No person convicted of the murder of the decedent is entitled to succeed to any
portion of the decedent's estate. The portion to which he would otherwise be entitled to succeed goes to the other
persons entitled to it under the provisions of this chapter.
104 Nev. 294, 296 (1988) Holliday v. McMullen
awarded compensatory damages in an amount equal to the value of the decedent's estate
($350,000) and punitive damages in a like amount. We agree with appellant's contention that,
under NRS 134.007, only a criminal conviction of murder will preclude an individual from
succeeding to an estate. We further conclude the district court erred in interpreting NRS
134.007 to allow a civil determination of guilt after Holliday had previously been acquitted.
At common law, a murderer was not precluded from succeeding to the estate of his victim.
See generally Annotation, Homicide As Precluding Taking Under Will or By Intestacy, 25
A.L.R. 4th 787 (1983). State legislatures, rightfully resolving that killers should not profit
from their heinous deeds, began passing laws that have come to be known as slayer statutes.
NRS 134.007, added to the Nevada Revised Statutes in 1981, is such a statute.
A defendant is presumed innocent until the contrary is proved. A defendant charged with
the commission of a crime and faced with the loss of his freedom, or worse, cherishes the
significance of his presumed innocence. Punishment will not be imposed until the
prosecuting agency proves that the charges are true, beyond a reasonable doubt. See NRS
175.201.
The burden of proof in a civil action is less stringent. A preponderance of the evidence is
all that is needed to resolve a civil matter. Silver Mining Co. v. Fall, 6 Nev. 116 (1870). This
burden is too easily manipulated. Peeples v. Corbett, 117 Fla. 213, 157 So. 510 (1934).
The statute in question, including the word convicted, should be given its common sense
meaning. Courts can not convict a defendant of a criminal offense in a civil action.
Defendants must be convicted of murder, or any other criminal offense, in a criminal action,
where the burden of proof protects and preserves constitutional rights.
The legislature has chosen to preempt the common law by enacting 134.007. The statutory
bar to inheritance contained in NRS 134.007 can only be extended by the legislature. See Hill
v. Morris, 85 So.2d 847 (Fla. 1956). Legislative intent to disinherit must be clearly reflected,
it will not be implied. Estate of Kramme, 143 Cal.Rptr. 542, 573 P.2d 1369 (1978). Statutes
in derogation of the common law must be strictly construed. Sutherland Stat. Const.
61.01-06 (4th Ed.). See NRS 87.040. NRS 134.007, in its present form, does not apply to a
defendant who has been acquitted of all criminal charges.
In view of his conclusion we find it unnecessary to address appellant's remaining
contentions. Thus, we hold that the district court erred and consequently reverse the district
court's ruling.
____________
104 Nev. 297, 297 (1988) Landmark Hotel v. Moore
LANDMARK HOTEL & CASINO, INC., Appellant, v. BERTHA L. MOORE, WILGAR
BROTHERS GLASS, HORTON AUTOMATIC, a Division of OVERHEAD DOOR
CORPORATION, Since Changed Its Name to the DALLAS CORPORATION, Respondents.
No. 18281
June 28, 1988 757 P.2d 361
Appeal from a judgment against Landmark Hotel awarding Bertha L. Moore damages;
from an order denying Landmark Hotel's motion to amend the judgment; from a partial
judgment on the verdict in favor of Wilgar Brothers Glass Company; from an NRCP 41(b)
order of partial dismissal in favor of Wilgar Brothers Glass Company; from an NRCP 41(b)
order of dismissal in favor of Horton Automatic; and from all interlocutory and
post-judgment rulings in this action. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Patron sued hotel, manufacturer, and installer of allegedly defective automatic sliding
glass doors for injuries caused when doors prematurely closed on her. The district court
entered judgment for patron, and hotel appealed from judgment, order dismissing
codefendants, and other denials of post-judgment relief. The Supreme Court held that: (1)
issue of hotel's objection to trial court's dismissal of codefendants was waived on appeal
where hotel did not timely object to dismissals at trial, and (2) instruction on res ipsa loquitur
doctrine was proper.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel Polsenberg, and Ellen J.
Winograd, Las Vegas, for Appellant.
Jimmerson & Davis, and Lynn M. Hansen, Las Vegas, for Respondent Bertha L. Moore.
Thomas Beatty, Las Vegas, for Respondent Dallas Corporation.
Miles, Pico & Mitchell, Las Vegas for Respondent Wilgar Brothers Glass.
1. Appeal and Error.
Issue of defendant hotel's objection to trial court's dismissal of codefendants manufacturer and installer of
allegedly defective automatic sliding glass doors which injured plaintiff was waived on appeal, where hotel
did not object to dismissals at trial, even though plaintiff timely objected.
104 Nev. 297, 298 (1988) Landmark Hotel v. Moore
2. Appeal and Error.
Purpose of requirement that party object to action of trial court at time it is taken is to allow trial court to
rule intelligently and to give opposing party opportunity to respond to objection.
3. Innkeepers.
Allegations of negligence in complaint were sufficiently general to allow plaintiff to rely on res ipsa
loquitur doctrine in suit against hotel for personal injuries caused by allegedly defective automatic sliding
glass doors.
4. Innkeepers.
Hotel had exclusive control over allegedly defective automatic sliding glass doors which injured plaintiff,
so as to support instruction on res ipsa loquitur doctrine, where there was no evidence of maintenance
agreement between hotel, manufacturer, and installer of doors which would have suggested joint control.
5. Negligence.
Premature closing of automatic sliding glass doors was not type of accident that would ordinarily occur in
absence of negligence, so that instruction on res ipsa loquitur doctrine was proper.
6. Innkeepers.
Instruction on res ipsa loquitur doctrine in suit against hotel for injuries caused by allegedly defective
automatic sliding glass doors was supported by evidence that hotel did not have regular maintenance or
inspection program for doors, so that doors would not have closed prematurely, and with such
disproportionate force, in absence of negligence on part of hotel.
OPINION
Per Curiam:
This is an appeal from a judgment against Landmark Hotel and Casino, Inc. (hereinafter
Landmark) awarding Bertha L. Moore $49,571.65 in present damages and $39,428.35 in
future damages. Landmark additionally appeals from the trial court's NRCP 41(b) dismissals
of Bertha L. Moore's strict liability claims against Wilgar Brothers Glass Company and
Horton Automatic, from an order denying Landmark's motion to amend the judgment, from a
partial judgment on the verdict in favor of Wilgar Brothers Glass Company, and from all
interlocutory and post-judgment rulings in this action.
Ninety-four year old Bertha L. Moore (hereinafter Moore) was injured when she
attempted to enter the Landmark Hotel and Casino in Las Vegas through an entrance with
automatic sliding glass doors. Before Moore could pass completely through the entrance, the
doors closed on her, knocking her down and injuring her severely. Moore filed a complaint
against the following parties: Landmark Hotel and Casino, Inc.; Wilgar Brothers Glass
Company (hereinafter Wilgar); and Horton Automatic (hereinafter "Horton").1 Moore's
amended complaint stated causes of action against all three defendants for negligence
and against Wilgar and Horton for strict liability.
104 Nev. 297, 299 (1988) Landmark Hotel v. Moore
inafter Horton).
1
Moore's amended complaint stated causes of action against all three
defendants for negligence and against Wilgar and Horton for strict liability.
The trial court granted Horton's NRCP 41(b) motion to dismiss as to both the strict
liability and negligence causes of action. The trial court granted Wilgar's NRCP 41(b) motion
to dismiss as to the strict liability cause of action but not as to the negligence cause of action.
We hold that Landmark's challenge to the NRCP 41(b) dismissals of Moore's strict liability
claims against Wilgar and Horton must fail since Landmark failed to object to the dismissals
at trial.
[Headnote 1]
Pursuant to NRCP 46, for all purposes for which a formal exception to a ruling or order of
the court was formerly necessary, it is now sufficient that a party makes known to the court
the action which he desires the court to take or his objection to the action of the court and his
grounds therefor. NRCP 46. Nevertheless, failure to object to a ruling or order of the court
results in waiver of the objection and such objection may not be considered on appeal. Mahan
v. Hafen, 76 Nev. 220, 351 P.2d 617 (1960).
Landmark contends that it is irrelevant which party called the error to the trial court's
attention, arguing that since Moore objected to the dismissals of Wilgar and Horton, the issue
was preserved for appeal. According to Landmark, Moore fully articulated the arguments
against the NRCP 41(b) motions, and it would have added nothing for Landmark to have
joined in Moore's arguments. Even if this issue were raised for the first time on appeal, insists
Landmark, granting Wilgar and Horton's NRCP 41(b) motions was plain error, which this
court may consider even in the absence of an objection below if it is so substantial as to result
in a miscarriage of justice.
[Headnote 2]
The purpose of the requirement that a party object to the action of the trial court at the time
it is taken is to allow the trial court to rule intelligently and to give the opposing party the
opportunity to respond to the objection. Sharon v. Minnock, 6 Nev. 377 (1871). In the present
case, Landmark and Moore were opposing parties. We will not assume, as Landmark entreats,
that defendant Landmark's objections to the dismissal of its co-defendants would mirror those
objections made by plaintiff Moore. Cf. Greenleaf v. Birth, 9 Pet. 292, 9 L.ed. 132 (1835)
(defendant can only take advantage of his own exception and may not rely on exceptions of
the plaintiff).
____________________

1
Wilgar was the installer of the doors, and Horton was the manufacturer.
104 Nev. 297, 300 (1988) Landmark Hotel v. Moore
the plaintiff). Moreover, we are persuaded by Moore's argument that had Landmark properly
objected to the dismissal of Moore's strict liability claims against Wilgar and Horton, Moore,
as a matter of strategy, might have dropped those claims to avoid having to relitigate them on
appeal. Thus, Landmark's failure to object not only deprived the trial court of information and
arguments necessary to allow the trial court to rule intelligently, Landmark also unfairly
prejudiced Moore by concealing from her the possibility of an appeal by Landmark of the
dismissals of the strict liability claims against Landmark's co-defendants.
We conclude that no manifest injustice resulted from the dismissals of Moore's strict
liability claims against defendants Wilgar and Horton. Accordingly, we reject Landmark's
contention that its allegations of plain error entitle Landmark to appellate review of judicial
actions Landmark neglected to object to below.
[Headnote 3]
We are also unable to find merit in Landmark's challenge of the judgment against it. After
a jury trialin which the trial court instructed the jury on the doctrine of res ipsa loquitur as
to Landmark, but not as to Wilgarthe jury found Landmark liable to Moore, but exonerated
Wilgar. Landmark contends that it was error for the trial court to give the res ipsa loquitur
instruction.
In Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985), we explained the
application of the doctrine of res ipsa loquitur as follows:
A res ipsa inference of negligence is permitted when one entity is shown to be in
exclusive control of the instrumentality causing harm, where the accident is one that
does not ordinarily occur in the absence of negligence, and where the defendant is in a
better position to explain the cause of the accident. Proof of exclusive control, the first
element listed above, substitutes for proof of the specific act constituting the breach
when the latter two elements are also satisfied.
Otis Elevator, 101 Nev. at 519, 706 P.2d at 1380.
Landmark contends that it was reversible error for the trial court to instruct the jury on the
res ipsa loquitur doctrine because (1) Moore set out specific negligent acts or omissions in her
complaint rather than relying on general allegations of negligence, (2) Landmark did not have
exclusive control over the doors, and (3) Moore's accident was one that would ordinarily
occur in the absence of negligence.
Relying on Austin v. Dilday, 55 Nev. 357, 34 P.2d 1073 (1934), noted in Annotation,
Modern Trends as to Pleading a Particular Cause of Injury or Act of Negligence as Waiving
or Barring the Right to Rely on Res Ipsa Loquitur, 2 A.L.R.3d 1335 {1965), Landmark
contends that res ipsa loquitur is not applicable in this case because Moore, instead of
relying on general allegations of negligence, set out specific acts or omissions in her
complaint.
104 Nev. 297, 301 (1988) Landmark Hotel v. Moore
Barring the Right to Rely on Res Ipsa Loquitur, 2 A.L.R.3d 1335 (1965), Landmark contends
that res ipsa loquitur is not applicable in this case because Moore, instead of relying on
general allegations of negligence, set out specific acts or omissions in her complaint. We
disagree. The allegations of negligence stated in Moore's complaint were sufficiently general
that Austin does not preclude Moore from asserting her right to invoke the doctrine of res ipsa
loquitur.
2

[Headnote 4]
Landmark also argues that the res ipsa loquitur instruction should not have been given
because it was not clear that Landmark had exclusive control over the doors that injured
Moore. See Fireman's Fund Am. Ins. Co. v. Knobbe, 93 Nev. 201, 562 P.2d 825 (1977). We
find Landmark's position unsupported by the record and point out that Landmark admits that
there was no evidence of a maintenance agreement, which would have suggested joint
control, between Landmark and the other defendants.
[Headnote 5]
Also unconvincing is Landmark's contention that Moore's accident with the automatic
sliding doors was of the type that would ordinarily occur in the absence of negligence. In
Rose v. Port of New York Auth., 293 A.2d 371 (N.J. 1972), noted in Prosser and Keeton on
the Law of Torts (W. Keeton 5th ed. 1984), the plaintiff was struck and injured by an
automatic door controlled by a pressure sensitive mat. The Rose court commented:
Members of the public passing through automatic doors, whether in an airport, office
building or supermarket do so generally, without sustaining injury. What happened to
the plaintiff here is fortunately unusual and not commonplace. It strongly suggests a
malfunction which in turn suggests neglect.
Rose, 293 A.2d at 375. We agree with the Rose court. Automatic sliding glass doors of the
type that injured Moore are ubiquitous, affording the public safe ingress and egress to
countless facilities on a daily basis. What happened to Moore is unusual; it strongly suggests
a malfunction attributable to negligence.
[Headnote 6]
Finally, Moore's expert witness testified that the automatic doors that injured Moore
should receive thorough mechanical inspections at least every six months, and that they
should be inspected weekly to determine if they are working properly.
____________________

2
We do not, by addressing Landmark's contentions on this issue, make a determination of the vitality of the
largely neglected Austin case.
104 Nev. 297, 302 (1988) Landmark Hotel v. Moore
Landmark's assistant chief engineer testified that Landmark did not have any regular
maintenance or inspection program for the doors that injured Moore. Such testimony compels
the conclusion that the automatic sliding doors would not have closed prematurely, and with
such disproportionate force, in the absence of negligence on the part of Landmark.
Review of Landmark's remaining contentions reveals them to be without merit;
accordingly, we affirm the judgment of the trial court.
____________
104 Nev. 302, 302 (1988) Employment Sec. Dep't v. Verrati
EMPLOYMENT SECURITY DEPARTMENT OF NEVADA, and STARDUST HOTEL,
Appellants, v. MICHAEL J. VERRATI, Respondent.
No. 18353
June 28, 1988 756 P.2d 1196
Appeal from an order of the district court reversing administrative decision to deny
unemployment insurance benefits. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
After being discharged for nodding off while on duty and refusing employer's request that
he take blood test, casino employee applied for unemployment benefits. Employment
Security Department denied claim, and employee sought judicial review. The district court
reversed administrative decision to deny benefits, and Department and employer appealed.
The Supreme Court held that employee's conduct in nodding off during period of about two
hours was misconduct warranting discharge and disqualifying employee form receiving
benefits.
Reversed.
Crowell, Susich, Owen & Tackes, Carson City; McDonald, Carano, Wilson, Bergin,
Frankovich & Hicks and Salvatore C. Gugino, Las Vegas, for Appellants.
Richard Segerblom, Las Vegas, for Respondent.
1. Administrative Law and Procedure; Social Security and Public Welfare.
Factual findings of Employment Security Department's Board of Review that are supported by evidence
are conclusive, and reviewing court's jurisdiction is confined to questions of law in unemployment
compensation case. NRS 612.530, subd. 4.
2. Social Security and Public Welfare.
Misconduct warranting discharge and disqualifying employee from receiving unemployment
compensation benefits includes carelessness or negligence of such degree as to show
substantial disregard of employer's interest or employee's duties and obligations to
his employer or disregard of standards of behavior which employer has right to
expect.
104 Nev. 302, 303 (1988) Employment Sec. Dep't v. Verrati
from receiving unemployment compensation benefits includes carelessness or negligence of such degree as
to show substantial disregard of employer's interest or employee's duties and obligations to his employer or
disregard of standards of behavior which employer has right to expect. NRS 612.385.
3. Social Security and Public Welfare.
Regardless of whether employer's request that casino employee take blood test was reasonable,
employee's actions, just prior to employer's request, in nodding off during period of about two hours was
misconduct and warranting discharge, subject to discharge and disqualifying employee from receiving
unemployment benefits; employee had been warned concerning inattentiveness, nodding off prevented
employee from executing his assigned duties, and sleeping on duty violated one of employer's written rules.
NRS 612.385.
OPINION
Per Curiam:
On August 22, 1986, respondent Michael James Verrati was observed repeatedly nodding
off and sleeping for up to a few minutes at a time while on duty as a boxman in the casino of
the Stardust Hotel in Las Vegas. This behavior continued for more than two hours. Casino
personnel who removed him from the game observed that his speech was slurred and asked
him to submit to a blood test. Verrati refused to take a blood test, but offered to take a urine
or other non-invasive drug or alcohol test. The casino suspended Verrati and terminated him a
few days later. The reason given for Verrati's termination was his refusal to submit to the
blood test.
Verrati filed a claim for unemployment benefits with the Nevada Employment Security
Department. His former employer contested the claim. The Employment Security Department
denied Verrati's claim on the basis that his refusal to take the blood test was a violation of an
employer rule and misconduct in connection with work within the meaning of NRS 612.385.
A hearing was held, and the hearing officer affirmed the Department's decision, finding that
the casino management had probable or reasonable cause for requiring Verrati to take a blood
test. The hearing officer also found that there had been an incident three days earlier in which
Verrati was warned about being inattentive. Verrati appealed to the Board of Review, which
adopted the findings and conclusions of the hearing officer and affirmed his decision.
Verrati filed a petition for judicial review, and on June 5, 1987, the district court entered
an order reversing the Board's decision. The court's order did not explain the basis for its
decision, but the minute entry for the case stated that [t]he court . . . does not think nodding
off is enough to deny benefits."
104 Nev. 302, 304 (1988) Employment Sec. Dep't v. Verrati
think nodding off is enough to deny benefits. This appeal followed.
[Headnote 1]
If the factual findings of the Board are supported by evidence, they are conclusive, and a
reviewing court's jurisdiction is confined to questions of law. NRS 612.530(4). [I]n
reviewing the decision of an administrative agency, the district court is limited to a
determination of whether the board acted arbitrarily or capriciously. Leeson v. Basic
Refractories, 101 Nev. 384, 385, 705 P.2d 137, 138 (1985) (citations omitted). [T]he
question is whether the board's decision was based on substantial evidence; neither this court
nor the district court may substitute its judgment for that of the administrative agency. Id. at
385-86, 705 P.2d at 138 (quoting State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124, 676
P.2d 1318, 1320 (1984)).
[Headnote 2]
The Board denied Verrati benefits pursuant to NRS 612.385 because it found he had been
discharged for misconduct connected with his work. We have previously explained that
[C]arelessness or negligence on the part of the employee of such a degree as to show a
substantial disregard of the employer's interests or the employee's duties and obligations to
his employer are considered NRS 612.385 misconduct, as are deliberate violation or
disregard on the part of the employee of standards of behavior which his employer has the
right to expect. Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968) (citing
Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941)).
[Headnote 3]
Verrati was nodding off during a period of about two hours, and he had been warned
concerning inattentiveness a few days before the August 22 incident. Verrati's duties included
observing and supervising the game, receiving and depositing money and distributing
markers. He could not execute these duties when nodding off, and his inattentiveness created
an obvious risk of harm to the casino. Moreover, sleeping on duty violated one of the
employer's written rules. Verrati's behavior clearly constituted misconduct under the
definition in Barnum.
The record contains substantial evidence that Verrati nodded off or slept while on duty.
Under the facts of this case such behavior constitutes NRS 612.385 misconduct. Since the
record contains sufficient evidence of misconduct without considering Verrati's refusal to
take the blood test, we decline to address Verrati's contention that his employer was
unreasonable in refusing to substitute a breath or urine test for the blood test. Because the
Board's decision was supported by substantial evidence and was not arbitrary and
capricious, the district court erred in reversing the Board's determination.
104 Nev. 302, 305 (1988) Employment Sec. Dep't v. Verrati
was not arbitrary and capricious, the district court erred in reversing the Board's
determination. Leeson 101 Nev. at 386, 705 P.2d at 138-39.
Accordingly, we reverse the order of the district court and reinstate the decision of the
Board.
____________
104 Nev. 305, 305 (1988) Weaver v. SIIS
IRMA WEAVER, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, An Agency
of the State of Nevada, Respondent.
No. 18416
June 28, 1988 756 P.2d 1195
Appeal from an order of the district court denying appellant's motion for an award of
interest on a delayed payment of workers' compensation benefits. Eighth Judicial District
Court, Clark County; Earle W. White, Jr., Judge.
Action was brought for workers' compensation benefits. The district court awarded
benefits, and claimant appealed denial of interest on award. The Supreme Court held that
claimant was not entitled to award of interest on workers' compensation benefits paid only
after successful litigation, absent legislative authorization for same.
Affirmed.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel Polsenberg, Las Vegas, for
Appellant.
Pamela Bugge, General Counsel, Carson City, and Virginia L. Hunt, Associate General
Counsel, Las Vegas, for Respondent.
Workers' Compensation.
Claimant was not entitled to interest on workers' compensation benefits, though benefits were paid only
after successful litigation, absent legislative authorization for same. NRS 616.010 et seq.
OPINION
Per Curiam:
The sole issue in this appeal is whether a claimant is entitled to an award of interest on
workers' compensation benefits paid only after successful litigation. We conclude that the
claimant is not so entitled.
Chapter 616 of the Nevada Revised Statutes sets forth a comprehensive system for the
compensation of industrial injuries.
104 Nev. 305, 306 (1988) Weaver v. SIIS
Because the system is uniquely legislative in nature, and alters the common law rights and
liabilities of both employees and employers, we have previously refused to disturb the
delicate balance created by the legislature by implying provisions not expressly included in
the legislative scheme. See Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 729 P.2d 1355
(1986). Although the legislature was aware that workers' compensation claims would often be
litigated, and indeed provided the mechanism for judicial review of the decisions of the
legislatively created agency which administers the workers' compensation statutes, the
legislature did not provide that interest on delayed workers' compensation awards should be
allowed.
Appellant contends that this court, in liberally construing the workers' compensation
statutes, should infer an intention on the part of the legislature to allow interest on the delayed
payment of workers' compensation benefits in order to effectuate the legislative policy to
compensate injured workers fully. Appellant argues that such benefits may be awarded
pursuant to general statutes and rules providing for interest on debts and judgments. See, e.g.,
NRS 99.040; NRS 17.130; NRAP 37.
Workers' compensation statutes must be liberally construed to protect the worker. See SIIS
v. Weaver, 103 Nev. 196, 734 P.2d 740 (1987). This general rule of statutory construction,
however, cannot justify the inclusion in a statutory scheme of a substantive right that cannot
be supported by any fair reading of the statutory scheme. By their own terms, NRS 99.040,
NRS 17.130 and NRAP 37 do not purport to apply to an award of workers' compensation.
Further, there is nothing in Chapter 616 of the Nevada Revised Statutes which could be read
to authorize an award of interest. Our review of the legislative scheme as a whole convinces
us that, if a policy consideration advocates that interest on workers' compensation awards
should be allowed, the legislature is perfectly capable of implementing such a policy. We
therefore decline to adopt the rule urged by appellant.
1

We have considered appellant's remaining contentions, and we conclude that they lack
merit. Accordingly, we affirm the order of the district court.
____________________

1
We are aware that other courts have allowed interest in workers' compensation cases under general interest
statutes. See Land & Marine Rental Co. v. Rawls, 686 P.2d 1187 (Alaska 1984); Tisdel v. Industrial Com'n of
Ariz., 747 P.2d 599 (Ariz.App. 1987). Nevertheless, because the workers' compensation remedy is unique and
exclusive, we decline to judicially mandate an award of interest in a workers' compensation case. See Haret v.
SAIF, 697 P.2d 201, 204 (Or.App. 1985), review denied, 703 P.2d 1110 (Or. 1985) (appellate court refused to
award interest in workers' compensation case where interest was not provided for by legislature).
____________
104 Nev. 307, 307 (1988) Marine Midland Bank v. Monroe
MARINE MIDLAND BANK, Appellant, v.
KIMBERLY MONROE, Respondent.
No. 18439
June 28, 1988 756 P.2d 1193
Appeal from an order of the district court dismissing appellant's complaint with prejudice.
Second Judicial District Court, Washoe County; Robin Anne Wright, Judge.
Creditor commenced suit against divorced husband and wife to recover joint credit card
debt. Complaint against wife was dismissed by the district court for failure to state a claim,
and creditor appealed. The Supreme Court held that creditor was not bound or collaterally
estopped by divorce decree between joint debtors whereby husband was ordered to pay the
debt.
Reversed and remanded.
Douglas Norberg, Reno, for Appellant.
Goedert & Michaels, Reno, for Respondent.
1. Divorce.
Creditor which was not a party to, or in privity with any part to, divorce proceedings was not bound or
collaterally estopped by divorce decree between joint debtors whereby husband was ordered to pay
community debt due on the joint account, and thus was not precluded from enforcing debt against wife.
2. Judgment.
Party invoking collateral estoppel must show, first, that the issue was actually litigated in the first
proceeding and necessarily determined and, second, that the parties in the second proceeding are the same
or in privity with those in the first proceeding.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellant Marine Midland
Bank's complaint against respondent Kimberly Monroe with prejudice.
Kimberly Monroe and Gifford Sheppard, as husband and wife, were joint debtors on a
Visa credit card account with appellant bank. As part of a divorce decree, Sheppard was
ordered to pay the community debt due on the Visa account. When Sheppard later failed to
pay this debt, the bank commenced suit against Sheppard and Monroe. Monroe moved the
district court to dismiss the complaint against her on the ground that the bank was collaterally
estopped by the divorce decree from enforcing the debt against her. The district court agreed,
and dismissed the bank's complaint against Monroe with prejudice for failure to state a
claim.
104 Nev. 307, 308 (1988) Marine Midland Bank v. Monroe
bank's complaint against Monroe with prejudice for failure to state a claim. See NRCP
12(b)(5). The bank later obtained a default judgment against Sheppard, and this appeal
followed.
[Headnote 1]
Appellant contends that the district court erred in concluding that a third-party creditor
could be bound by a divorce decree between joint debtors where the creditor was not a party
to, or in privity with any party to, the divorce proceedings. We agree.
[Headnote 2]
The doctrine of collateral estoppel operates to preclude the parties or their privies from
relitigating issues previously litigated and actually determined in the prior proceeding.
Landex, Inc. v. State ex rel. List, 94 Nev. 469, 476, 582 P.2d 786, 790 (1978). See Paradise
Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596, cert. denied, 414 U.S. 865 (1973). The
party invoking collateral estoppel must show first that the issue was actually litigated in the
first proceeding and necessarily determined, and second, that the parties in the second
proceeding are the same or in privity with those in the first proceeding. See Brennan v.
EMDE Medical Research, Inc., 652 F.Supp. 255 (D.Nev. 1986); In re Shuman, 68 Bankr. 290
(Bankr.D.Nev. 1986); State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976); Markoff v. New
York Life Ins. Co., 92 Nev. 268, 549 P.2d 330 (1976).
The issues relevant to the bank's claim against Monroe based on their credit agreement
were neither litigated nor determined in the divorce proceedings. Further, the bank was not a
party to the divorce action, nor was it in privity with any party to the divorce action. Thus, the
divorce decree could not operate to divest the bank of its right to seek to collect its debt from
Monroe. Because none of the criteria for establishing a defense of collateral estoppel were
satisfied, the district court erred in granting Monroe's motion to dismiss the bank's complaint
for failure to state a claim.
Finally, in response to Monroe's motion to dismiss the bank's complaint, the bank moved
below for sanctions pursuant to NRCP 11 in the form of attorney's fees. The district court
denied the motion. The bank reasserts this claim on appeal.
The award of attorney's fees to the prevailing party is within the discretion of the district
court. See County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220
(1982). Because the district court erred in deciding the motion to dismiss, the district court
should reconsider on remand whether attorney's fees should be awarded.
1
Accordingly, we
reverse the order of the district court dismissing the bank's complaint and remand for
further proceedings.
____________________

1
The bank has moved, pursuant to NRS 18.010, for attorney's fees on appeal. NRS 18.010, however, governs
the award of attorney's fees in the
104 Nev. 307, 309 (1988) Marine Midland Bank v. Monroe
Accordingly, we reverse the order of the district court dismissing the bank's complaint and
remand for further proceedings. On remand, the district court shall reconsider its denial of the
bank's motion for attorney's fees.
____________________
district court. Further, under the circumstances of this case, we conclude that sanctions on appeal pursuant to
NRAP 38 are unwarranted. Accordingly, we deny this motion without prejudice to the bank's right to seek
appropriate relief in the district court.
____________
104 Nev. 309, 309 (1988) Washington v. State
JESSIE CHARLES WASHINGTON, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18730
June 28, 1988 756 P.2d 1191
Appeal from an opinion of the district court denying appellant's petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Defendant petitioned for post-conviction relief. The district court denied petition, and
appeal was taken. The Supreme Court held that notice of appeal was untimely.
Dismissed.
Terri Steik Roeser, Nevada State Public Defender and Jeffrey M. Evans, Deputy, Carson
City, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County,
for Respondent.
Criminal Law.
Appeal from order denying petition for post-conviction relief is criminal, rather than civil proceeding, for
purpose of calculating time for filing notice of appeal. NRS 177.385; NRAP 4(b).
OPINION
Per Curiam:
Our preliminary review of the record on appeal revealed a jurisdictional defect.
Specifically, appellant's notice of appeal appeared to be untimely, in that it was not filed
within thirty days from the date the district court entered its opinion denying appellant's
petition. See NRS 177.385 and NRAP 4(b).
1
Consequently, on March 4, 19SS, this court
entered an order in which it directed appellant to show cause why this appeal should not
be dismissed for lack of jurisdiction.
____________________

1
NRS 177.385 provides in part: [a] final judgment entered on an application for post-conviction relief may
be reviewed by the supreme court of this
104 Nev. 309, 310 (1988) Washington v. State
on March 4, 1988, this court entered an order in which it directed appellant to show cause
why this appeal should not be dismissed for lack of jurisdiction.
In response to that order, appellant has filed authorities in support of his position that this
appeal is timely, despite the fact that the notice of appeal was not filed within thirty days from
the date the district court entered its opinion. In particular, appellant argues that it is NRAP
4(a), rather than NRAP 4(b), which applies to appeals taken pursuant to NRS 177.385.
2
Thus, appellant contends that an appeal taken from a final judgment on an application for
post-conviction relief brought pursuant to NRS 177.385 should be treated as a civil, rather
than a criminal, proceeding. Consequently, appellant argues, because he did not receive
formal written notice of entry of the order denying his post-conviction petition, his notice of
appeal was timely filed. Appellant requests that this court reconsider its practice of treating
appeals under NRS 177.385 as criminal' matters, and instead consider them as civil appeals
for purposes of calculating the time for filing the notice of appeal.
In 1985 and 1987, the legislature made amendments to NRS Chapter 34 which provide
that appeals from orders denying post-conviction petitions for writs of habeas corpus are to be
filed within 30 days after the date of service of notice of entry of the judgment. See NRS
34.710(3) and 34.815(1). The legislature did not, however, make any similar amendments to
NRS Chapter 177. Appellant argues that post-conviction petitions and habeas corpus
proceedings are analogous remedies, and that it was the intent of the legislature that appeals
from either be handled in the same manner. We disagree. The legislature enacted a statute
specifically governing the timeliness of appeals taken from post-conviction habeas
proceedings. In enacting procedures applicable to the prosecution of petitions for
post-conviction relief, however, the legislature did not adopt provisions which would require
that appeals from such proceedings be subject to rules different from any other criminal
appeal. Cf. Baruth v. Gardner, 715 P.2d 369 {Idaho Ct.App.
____________________
state on appeal, brought either by the petitioner or by the state as provided by law.
NRAP 4(b) provides in part: [i]n a criminal case, the notice of appeal by a defendant shall be filed in the
district court within thirty (30) days after the entry of the judgment or order appealed from.

2
NRAP 4(a) provides in relevant part:
In a civil case in which an appeal is permitted by law from a district court to the Supreme Court the
notice of appeal required . . . shall be filed with the clerk of the district court within thirty (30) days of the
date of service of written notice of the entry of the judgment or order appealed from.
104 Nev. 309, 311 (1988) Washington v. State
369 (Idaho Ct.App. 1986) (defendant's appeal from an order dismissing petition for
post-conviction relief would not be dismissed as untimely, where notice of appeal was filed
after the expiration of the time provided by the applicable appellate rule, but within the
statutorily prescribed time for review set forth in the Uniform Post-Conviction Act adopted
by Idaho). Consequently, we cannot conclude that the legislature intended that an appeal from
an order denying a petition for post-conviction relief be governed by either the statutes
governing civil matters generally, or those applying to post-conviction petitions for habeas
corpus under NRS Chapter 34.
Appellant argues that various practical considerations relating to the plight of imprisoned
petitioners mandate the imposition by this court of a requirement that the time within which
to file a notice of appeal from orders denying post-conviction petitions not commence to run
until written notice of entry of judgment is served. The right to appeal, however, is statutory;
an untimely notice of appeal is insufficient to vest jurisdiction in this court. See Jordon v.
Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985). This court cannot, therefore,
in the absence of specific legislative authority permitting it to do so, take jurisdiction over
this untimely appeal by the selective application of statutes relating to civil proceedings.
We reject appellant's argument that this court should determine which appellate rule
applies by looking to the manner in which federal courts treat appeals from habeas corpus
proceedings. See, e.g., United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1239 (7th
Cir. 1986). This court has previously stated that habeas corpus is a proceeding which should
be characterized as neither civil nor criminal for all purposes. Hill v. Warden, 96 Nev. 38,
604 P.2d 807 (1980). Moreover, in the instant case appellant pursued relief under NRS
Chapter 177, a chapter organized with the other statutes of this state which govern matters of
criminal, and not civil, procedure.
Finally, appellant argues that if this court were to rule that the instant appeal is untimely,
concepts of judicial economy would be violated, because appellant would then raise claims
identical to those presented in the instant case in a post-conviction petition for a writ of
habeas corpus, and then take a timely appeal from any order of the district court denying
those claims. Appellant ignores, however, the fact that the decision of the district court in the
instant case has become final, and that appellant cannot relitigate those claims by filing
successive petitions. See, e.g., Dromiack v. Warden, 97 Nev. 348, 630 P.2d 751 (1981). Thus,
this court will not necessarily, as appellant asserts, be obligated ultimately to examine the
propriety of the denial by the district court of appellant's claims in the instant case.
104 Nev. 309, 312 (1988) Washington v. State
ultimately to examine the propriety of the denial by the district court of appellant's claims in
the instant case. See NRS 34.810.
For the reasons expressed above, we conclude that this court lacks jurisdiction to entertain
this appeal, and we hereby dismiss this appeal.
3

____________________

3
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request, 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 May 18, 1988.
____________
104 Nev. 312, 312 (1988) Ortiz v. State
OMAR ORTIZ, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 18673
June 28, 1988 756 P.2d 1189
Appeal from order certifying appellant as an adult to answer charges of trafficking in a
controlled substance, sale of a controlled substance, and conspiracy to sell a controlled
substance. Eighth Judicial District Court, Juvenile Division, Clark County; John S.
McGroarty, Judge.
Defendant was charged with trafficking in and sale of controlled substance. The district
court certified defendant as adult, and appeal was taken. The Supreme Court held that
certification was supported by evidence that defendant was major promoter and coordinator
of cocaine purchase in question.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence Jackson, Deputy, Clark County, for
Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, James
Tufteland, Deputy, and Daniel M. Seaton, Deputy, Clark County, for Respondent.
Infants.
Evidence supported certification of 17-year-old narcotics defendant as adult where defendant was major
promoter and coordinator of cocaine purchase.
OPINION
Per Curiam:
Facts
As part of a drug trafficking investigation, undercover Las Vegas Police Officer, Cardell
Pearson, received from a confidential informant a Juarez, Mexico, telephone number.1
Pearson called the number and was advised by an individual identified as Patricia that
Pearson could purchase five kilos of cocaine at a price of $2S,000 a kilo.
104 Nev. 312, 313 (1988) Ortiz v. State
Vegas Police Officer, Cardell Pearson, received from a confidential informant a Juarez,
Mexico, telephone number.
1
Pearson called the number and was advised by an individual
identified as Patricia that Pearson could purchase five kilos of cocaine at a price of $28,000 a
kilo. Patricia informed Pearson that her brother, appellant Omar Ortiz, would come to Las
Vegas to make the transaction. At Patricia's request, Pearson wired $500 to Ortiz for travel
expenses. Patricia also advised Pearson that her brother did not speak English very well.
Pearson met Ortiz and another individual named Alfredo at the Hilton Hotel where
Pearson had reserved a room for Ortiz. Both men advised Pearson that they had very heavy
connections and could get Pearson any amount of cocaine or marijuana that he wished. At
this time, Pearson showed the two men $140,000 to be used for the purchase of the five kilos.
Ortiz advised Pearson that it would take a little time because the cocaine was going to be
delivered from Los Angeles to Las Vegas. A couple of days later, Alfredo informed Pearson
that they were having some problems with the people in Los Angeles and that Ortiz had gone
to Los Angeles to pick up the cocaine.
The next day, via telephone, Alfredo advised Pearson that Ortiz had returned,
accompanied by their California connections. Alfredo further explained that they had brought
only one kilo to see how the first deal would go and they would shortly stop by Pearson's
room. Four people showed up: Ortiz, Alfredo, and two other men introduced only as Poncho
and Marco. Ortiz was carrying an athletic bag over his shoulders and he and Alfredo
motioned Pearson to follow them into the bathroom. Once inside, Ortiz removed from his bag
a package which later proved to contain 1,101 grams of 82.7 percent pure cocaine. Pearson
called another undercover officer to deliver the money. Once the money arrived, Pearson,
Ortiz and Alfredo again entered the bathroom. Pearson told them $28,000 was too high a
price for the kilo. Ortiz, in English, told Pearson that he would only charge $26,000. Pearson
gave the money to Ortiz, who placed it in the top portion of his pants. As they exited the hotel
room, all four suspects were confronted by the police. Ortiz ran to the bathroom where he
removed the money from his pants and threw it onto the floor.
Ortiz was arrested and charged with trafficking in a controlled substance, sale of a
controlled substance and conspiring to commit the sale of a controlled substance.
____________________

1
Eventually there were two telephone numbers involved. U.S. Customs Service Special Agent Lee E.
Brenner discovered that the second telephone number was in El Paso and came back to a pocket pager device
leased by appellant Omar Ortiz, with an address in Juarez, Mexico. The application filled out for the pager listed
Ortiz' telephone number in Juarezthe same number Pearson had been given by the confidential informant.
104 Nev. 312, 314 (1988) Ortiz v. State
substance, sale of a controlled substance and conspiring to commit the sale of a controlled
substance. Because Ortiz was seventeen at the time of his arrest, the State filed a petition to
certify Ortiz as an adult. At the initial certification hearing, probation officer Mary Resendez
filed a certification report recommending that the State's motion to certify be denied.
However, during the hearing it became apparent that Resendez had made her report without
having read the investigative reports of the officers involved in the operation. In a
continuation of the hearing, Resendez, based on the additional information in the reports,
opined that Ortiz was much more involved in the conspiracy than he had originally admitted.
Resendez also agreed that the transaction was a sophisticated buy. Even so, because Ortiz was
living at home and had no previous criminal record, and because Resendez believed Ortiz
would not again get involved in a crime of such magnitude, she did not change her
recommendation that certification be denied.
The court concluded that Ortiz was charged with a heinous and egregious crime.
Moreover, the judge was not convinced that Ortiz was so naive that he did not know what he
was doing, and concluded that the evidence was clear and convincing that the public safety
and welfare required that Ortiz face the charges as an adult. On appeal, Ortiz claims the court
erred in transferring him to the adult court.
Discussion
Under the guidelines set forth by this court in the case of In the Matter of Seven Minors,
99 Nev. 427, 664 P.2d 947 (1983), we are persuaded that the district court did not err in
certifying Ortiz as an adult.
In Matter of Seven Minors we held that a juvenile court should decide for or against
transfer on the basis of a matrix of categories: (1) the nature and seriousness of the charged
offense or offenses, (2) the persistency and seriousness of adjudicated or voluntarily admitted
past criminal offenses, and (3) the personal attributes of the offender. 99 Nev. at 442, 664
P.2d at 957. We also noted, however, that either seriousness of the charged offense or past
record, or a combination of these two categories, may support a decision to transfer. Id. Once
a transfer is justified on the basis of public interest and safety, there is no need to consider the
best interest of the child. Id. at 433, 664 P.2d at 951. In the instant case, we conclude that
the seriousness of the crimes charged, combined with the extensive involvement of Ortiz in
their perpetration, justify his certification as an adult.
The Legislature has clearly expressed its views as to the gravity of the criminal charges
facing Ortiz by affixing harsh penalties for the commission of such offenses.2 If Ortiz had
been but a "mule" or "runner" in the drug transaction, perhaps there would have been
some basis for questioning the propriety of transferring him to the adult court.
104 Nev. 312, 315 (1988) Ortiz v. State
penalties for the commission of such offenses.
2
If Ortiz had been but a mule or runner in
the drug transaction, perhaps there would have been some basis for questioning the propriety
of transferring him to the adult court. However, contrary to appellant's representation of the
facts, the record provides substantial evidence that Ortiz was a major promoter and
coordinator of the cocaine purchase.
The pager number given to Detective Pearson was leased to Ortiz. It was Ortiz to whom
the initial expense money ($500) was sent. It was also Ortiz who went to Los Angeles to pick
up the cocaine. When the time for the purchase arrived, Ortiz had possession of the cocaine
and received the money from Pearson. Perhaps the most revealing fact indicating that Ortiz
was a major actor in the conspiracy was the autonomy he exercised in accepting a lower price
for the cocaine.
Our nation is in the midst of a serious drug crisis. The sale and trafficking of large
quantities of cocaine represent a major threat to our communities. When juveniles, such as
Ortiz, knowingly and extensively involve themselves in the sale and trafficking of significant
quantities of controlled substances, their transfer to the adult criminal court may be readily
justified as essential to public safety and welfare.
Accordingly, we affirm the decision of the district court certifying Ortiz as an adult
responding to the criminal charges specified against him.
____________________

2
The penalty imposed for trafficking or selling 400 grams or more of a controlled substance is imprisonment
in the state prison for life or or a definite term of not less than 15 years and by a fine of not less than $250,000.
NRS 453.3395(3).
NRS 453.3405(1) provides that the adjudication of guilt and imposition of sentence of a person found guilty
of trafficking in a controlled substance in violation of [NRS 453.3395] must not be suspended and the person is
not eligible for parole until he has actually served the mandatory minimum term of imprisonment prescribed by
the section under which he was convicted.
____________
104 Nev. 316, 316 (1988) Sparks v. State
CODY JEANNE SPARKS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17860
June 30, 1988 759 P.2d 180
Appeal from conviction of second degree murder with use of a deadly weapon. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Defendant was convicted by jury in the district court of second degree murder of her father
with use of deadly weapon, and she appealed. The Supreme Court held that State's
mishandling of evidence and district court's errors, in excluding sufficiently corroborated
statement against penal interest, restricting psychiatrist's testimony to responding to posed
hypotheticals, and rejecting negotiated plea agreement for insufficient reasons, warranted
reversal of conviction.
Reversed and dismissed.
Morgan D. Harris, Public Defender, Deborah J. Lippis, Deputy Public Defender, and
Herbert F. Ahlswede, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, and Ronald C. Bloxham, Deputy District Attorney, Clark
County, for Respondent.
Laura FitzSimmons and Lambrose, FitzSimmons & Perkins, Carson City, for Nevada Trial
Lawyers Association, Amicus Curiae.
1. Criminal Law.
Conviction may be reversed when State loses evidence if defendant is prejudiced by loss or evidence was
lost in bad faith by government.
2. Criminal Law.
Break in State's chain of custody of gun allegedly used by victim to threaten murder defendant, resulting
in potential loss of evidence of blood, hair, or fingerprints on weapon, the presence of which would have
been critical, corroborative evidence, warranted reversal of second degree murder conviction; claim of
self-defense had rested almost exclusively on defendant's own testimony, and State has buttressed its case
through opening and closing comments regarding absence of that evidence.
3. Homicide.
Testimony of acquaintance of victim who was killed by his own daughter regarding statements indicating
that victim believed in having sex with children and had had sex with his own daughter since she was a
little girl was sufficiently corroborated by defendant, the daughter, and by recognized expert in field of
child sexual and physical abuse who found numerous symptoms of abuse in defendant, and
testimony should have been admitted as statement against penal interest.
104 Nev. 316, 317 (1988) Sparks v. State
found numerous symptoms of abuse in defendant, and testimony should have been admitted as statement
against penal interest. NRS 51.345.
4. Criminal Law.
District court should not have severely restricted testimony of psychiatrist who examined murder
defendant and assisted in preparation of temporary insanity defense, limiting him only to responding to
posed hypotheticals, in effort to curtail any effect of psychiatrist's innocent mention of word polygraph
when asked foundational question relating to material accompanying request to examine defendant.
5. Criminal Law.
Trial judge could not reject negotiated plea bargain agreement for reasons reflecting only his opinion of
the public interest. NRS 174.035, subd. 1.
OPINION
Per Curiam:
Cody Jeanne Sparks, the appellant, was convicted of the second degree murder of her
father, Ralph Sparks, with the use of a deadly weapon.
Appellant raises four issues which we feel merit our attention and necessitate reversal of
the conviction. These assignments of error are directed to (1) the State's mishandling of
evidence, (2) the exclusion of hearsay testimony which was against the declarant's penal
interests, (3) the limitation of the testimony of appellant's psychiatrist to responding to
prepared hypotheticals, and (4) the district court's rejection of a negotiated plea bargain
agreement.
Appellant's theory of the case was that she had killed in self-defense and/or as a result of
temporary insanity. The day after the discovery of Ralph Sparks' body, and subsequent to
appellant's initial denial of any involvement in the homicide, appellant confessed to killing
her father in self-defense. Appellant then gave a statement to the police, which was consistent
with her testimony at trial. She testified to her father's acts of physical and sexual abuse
which began when she was just eight years old.
Appellant's mother and father separated when she was a young teenager, and Cody lived
with her mother in Las Vegas. On August 18, 1984, Cody's mother died from cancer. At that
time Cody was eighteen years old, and had not lived with her father for six years. Ralph
Sparks then moved back into the home with Cody. Cody testified that on August 22, 1984,
only four days after her mother's death, her father tied her up with a rope and abused her both
physically and sexually. During the forthcoming months, he burned her hair and back with
cigarettes and poked her with needles and a golf-shoe, spike wrench.
Appellant then focused her testimony upon the homicide and the days preceding it. On
Wednesday, February 28, 1985, her father came home intoxicated.
104 Nev. 316, 318 (1988) Sparks v. State
father came home intoxicated. She was asleep in her bedroom when her father entered the
room. He then sat on her, hit her repeatedly in the face, held a gun to her head, and forced her
to have sex. On Saturday, March 2, her father broke through her bedroom door with gun in
hand, but Cody was able to defend herself. They fought throughout the house. Finally tiring,
Ralph Sparks ended his attempt to sexually assault his daughter. However, as he was driving
appellant to her job later in the evening, he stabbed her repeatedly with a fingernail file. This
abuse, coupled with the abuse of prior months, left obvious marks, burns and bruises which
were apparent to the police officer who interrogated Cody following the homicide.
Cody testified that at 10:00 p.m. on Sunday, March 3, she was waiting for her father to
come home so that he might drive her to work. When he arrived he was drunk and entered her
bedroom carrying the gun. With the gun to her head, he held her down and ordered her to
undress, threatening to blow [her] head off if she did not comply. They wrestled to the floor
where her father hit her in the face with the gun. Cody, however, was able to escape
momentarily to the living room, but her father pursued her, cocked the gun (which he had
done before), and threatened to kill her if she did not return to the bedroom.
In response, Cody picked up a tire iron which was leaning against a nearby chair. She
threw it at her father, who was standing but five feet away, hitting him in the head. The fight
then continued throughout the house and ended only when she was able to take the tire iron
from her father and hit him repeatedly while he was on the floor. Cody testified that as her
father lay on the floor moaningobviously subduedshe picked up the gun which had been
dropped in the hallway during the fight, put it in the closet in its felt bag, and drove herself to
work.
Mishandling of Evidence
The police found a loaded .357 caliber handgun at the crime scene in a felt bag in the
master bedroom closet. The police visually examined the gun and bag for blood and hair;
neither were observed, and no chemical tests were performed. Although initially booked into
evidence, the gun and bag were released within the month (March of 1985) to Michael
Sparks, the victim's son. Thereby, the State broke its chain of custody although it was well
aware of appellant's claim of self-defense and the integral part the gun played in her relation
of the events.
The gun was not retrieved and rebooked into evidence until August 1, 1985. Although the
State's examination of the gun in August revealed no blood and only unidentified fingerprints
not belonging to appellant or the victim, it is clear that the break in the chain of custody may
have resulted in the loss of such evidence.
104 Nev. 316, 319 (1988) Sparks v. State
the chain of custody may have resulted in the loss of such evidence. In fact, in its appellate
brief the State admitted, it is possible that there were prints and blood on the gun tending to
support defendant's case theory. It is also conceivable that the State's procedures resulted in
loss of that evidence. We agree.
[Headnote 1]
A conviction may be reversed when the State loses evidence if (1) the defendant is
prejudiced by the loss or, (2) the evidence was lost in bad faith by the government. Howard
v. State, 95 Nev. 580, 582, 600 P.2d 214, 215-216 (1979). Appellant alleges that she has been
prejudiced, and it is her burden to show that it could be reasonably anticipated that the
evidence sought would be exculpatory and material to appellant's defense. Boggs v. State, 95
Nev. 911, 913, 604 P.2d 107, 108 (1979). In describing this test of materiality, the Supreme
Court in United States v. Agurs, 427 U.S. 97, 112-113 (1976), stated that the lost evidence
must be evaluated in the context of the entire record. The question is whether when so
evaluated a reasonable doubt exists which was not otherwise present.
[Headnote 2]
There were no witnesses to the homicide. Appellant's claim of self-defense rested, almost
exclusively, on her own testimony. Blood, hair, or fingerprints if found on the weapon would
have been critical, corroborative evidence supporting her testimony. Furthermore, we must
evaluate the potential effect of the lost evidence in light of the State's opening and closing
comments in which the State argued that the lack of fingerprints and blood on the gun
supported the State's theory, that the gun was not used and appellant was not acting in
self-defense.
1
The State cannot be allowed to benefit in such a manner from its failure to
preserve evidence.
____________________

1
In the opening, the State began:
Ladies and Gentlemen, there are a number of inconsistencies in her statement. For example, the gun
that's dropped on the floor, is cocked. She says she never uncocked it; didn't know how. The gun found in
the house is uncocked. And there is no blood on the gun.
(Emphasis added.)
In closing, the Prosecutor argued:
Well, ladies and gentlemen, the defense, at any time, could have had that weapon tested, also. The
State took the step, when it came to our attention in August of 1985, that we should have that gun
re-examined. It had been examined by Mr. Horn the night he processed the crime scene. But, let's take the
fingerprints, let's do a little more. The State took those steps. And had blood been on there, had
fingerprints of Cody Sparks been on there, you would know about it. You would know about it. But they
weren't, they weren't.
. . . .
She talks in terms of a gun. Ladies and gentlemen, the gun is not
104 Nev. 316, 320 (1988) Sparks v. State
The State admits that its break in the chain of custody may have resulted in the loss of
material evidence. However, not only would the loss of such evidence be prejudicial, but the
State buttressed its case by the absence of that evidence. As the State's action cannot be
corrected, we hold that the conviction must be reversed and all charges dismissed.
Statements Against Penal Interest
[Headnote 3]
Appellant attempted to proffer the testimony of K. D. Brown who was an acquaintance of
Ralph Sparks. Brown and Sparks were fellow golfers, pool players, and bartenders. The
defense sought to introduce statements made by Ralph Sparks which were against his penal
interest when made. The State objected, and an offer of proof was made. The defense stated
that if allowed to testify, Brown would state that Sparks had vulgarly asked him when Brown
would start having sex with children instead of women. Brown would also testify that on a
separate occasion, when riding together in a car, Sparks coarsely boasted of having sex with
his daughter since she was a little girl.
The appellant offered this testimony pursuant to NRS 51.345 as a statement against penal
interests.
2
The basis for the State's objection was that Sparks' statements were not
sufficiently corroborated, and the district court sustained the objection.
The determination whether corroborating circumstances clearly indicate the
trustworthiness of a third party confession lies within the sound discretion of the trial
court, which is aptly situated to weigh the reliability of the circumstances
surrounding the declaration, and this Court will review the exclusion of the . . .
confession only for an abuse of discretion.
____________________
corroborated in any way. In fact, all of the circumstantial evidence indicate the gun was not displayed.
Why is the gun back upon the closet shelf? Why isare there no fingerprints of her's on the gun? Why is
there no blood found on the gun. . . .

2
NRS 51.345 provides in relevant part:
1. A statement which at the time of its making:
(a) Was so far contrary to the declarant's pecuniary or proprietary interest;
(b) So far tended to subject him to civil or criminal liability;
. . . or
(d) So far tended to make him an object of hatred, ridicule or social disapproval, that a reasonable
man in his position would not have made the statement unless he believed it to be true is not inadmissible
under the hearsay rule if the declarant is unavailable as a witness. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(Emphasis added.)
104 Nev. 316, 321 (1988) Sparks v. State
is aptly situated to weigh the reliability of the circumstances surrounding the
declaration, and this Court will review the exclusion of the . . . confession only for an
abuse of discretion.
United States v. Guillette, 547 F.2d 743, 754 (2nd Cir. 1976). See generally Woods v. State,
101 Nev. 128, 696 P.2d 464 (1985).
Undoubtedly, Ralph Sparks' admission would have lent credibility to appellant's testimony
of long-term sexual abuse and the attempted sexual assault which allegedly precipitated
appellant's acts of self-defense. Character evidence is admissible for such purpose. NRS
48.045(1)(b); Coombs v. State, 91 Nev. 489, 538 P.2d 162 (1975).
We find that this admission was corroborated not only by appellant but also by John Sarb,
a recognized expert in the field of child sexual and physical abuse who found numerous
symptoms of abuse in appellant. Thus, we hold that the district court abused its discretion by
excluding such relevant testimony.
Expert Testimony
Appellant was the subject of two separate polygraph examinations. During the course of
pretrial motions, the district court ordered that neither party refer to the polygraphs during
trial, and the court directed counsel to so admonish their witnesses.
[Headnote 4]
Dr. O'Gorman, a psychiatrist who examined appellant, would have given his opinion of
appellant's sanity at the time of the homicide; however, when asked a foundational question
relating to material which accompanied the request to examine appellant, Dr. O'Gorman
stated that a polygraph report was present.
In an effort to curtail whatever effect the innocent mention of the word polygraph may
have had upon the jury, the district court went so far as to restrict Dr. O'Gorman's testimony
to responding to posed hypotheticals. The district court apparently concluded that instructing
the jury to disregard and place no weight upon Dr. O'Gorman's mention of a polygraph report
would have been insufficient to cure any inferences which the jury may have drawn. We note
that Dr. O'Gorman did not mention the subject of the polygraph, what questions were asked
by the polygraph examiner, or the results of the polygraph. Furthermore, he did not state that
the polygraph had been a factor in the formation of his opinion. Thus, it appears unlikely that
the jury would have drawn any inference whatsoever from the simple mention of the word
polygraph.
104 Nev. 316, 322 (1988) Sparks v. State
In Ake v. Oklahoma, 470 U.S. 68, 80 (1985), the Supreme Court recognized that the
assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his
defense. The Court concluded, therefore, that where it is likely that the defendant's sanity
will be a significant factor in his defense, the State must afford the defendant the assistance of
a psychiatrist in the preparation of his defense. 470 U.S. at 83.
Appellant, in fact, had the assistance of Dr. O'Gorman in the preparation of her defense,
specifically the defense of temporary insanity; however, Dr. O'Gorman's testimony was
severely restricted. Appellant was forced to pose 45 hypothetical facts as a foundation for her
expert's opinion. The laborsome direct examination of Dr. O'Gorman and the State's
dissection of the hypothetical, foundational facts obviously deflated Dr. O'Gorman's opinion.
While the admissibility of expert testimony is a matter for the sound discretion of the trial
judge, Townsend v. State, 103 Nev. 113, 119, 734 P.2d 705, 709 (1987), we have held that a
reference to polygraphs is not necessarily reversible error, Aguilar v. State, 98 Nev. 18, 639
P.2d 533 (1982). Dr. O'Gorman's qualification to testify as an expert has not been questioned,
yet he was restricted in his ability to express his opinion relating to appellant's mental
condition, being restricted to an opinion based on hypothetical facts relating to a hypothetical
individual. We hold that the district court abused its discretion in so restricting the
examination of appellant's expert.
Plea Bargain Agreements
[Headnote 5]
Prior to trial, a plea agreement was entered into between the State and appellant in which
appellant agreed to plead guilty to voluntary manslaughter. This agreement was rejected by
the court without reason. Appellant then petitioned for a writ of mandamus. In response, the
district court stated that the plea agreement had not been formally presented. In denying that
petition, we stated:
If the district court concludes there is a plea agreement between the parties, it shall
conduct a plea hearing to decide whether to accept the plea, in order to comply with its
obligation to consider seriously the proffered plea. See Sturrock v. State, 95 Nev. 938,
604 P.2d 341 (1979). If the district court disapproves the proposed agreement, it shall
state the reasons for its disapproval on the record. See, e.g., United States v.
Ammidown, 497 F.2d 615 (D.C.Cir. 1973); Hanley v. State, 97 Nev. 130, 624 P.2d
1387 (1981).
104 Nev. 316, 323 (1988) Sparks v. State
Thereafter, the State withdrew its offer, but during trial the State again offered to
negotiate. The trial judge, however, again refused to accept the agreement. At sentencing the
district court stated its reasons for rejecting the agreement:
In fact, very early on, the State apparently bought that concept [that appellant did not
know right from wrong, and had an uncontrollable urge]. They were ready to plead you
guilty to manslaughter, and even offered that in the middle of the trial. The Court
stated, no, that was an issue for the jury to decide and not for them.
In Ammidown, after acknowledging that the trial court's acceptance of a plea agreement is
discretionary, see also NRS 174.035(1); Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981);
Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979), the court stated that the trial judge in
rejecting an agreed plea must provide a reasoned exercise of discretion, Ammidown, 497
F.2d at 622.
The authority has been granted to the judge to assure protection of the public interest,
and this in turn involves one or more of the following components: (a) fairness to the
defense, such as protection against harassment; (b) fairness to the prosecution interest,
as in avoiding a disposition that does not serve due and legitimate prosecutorial
interests; (c) protection of the sentencing authority reserved to the judge. The judge's
statement or opinion must identify the particular interest that leads him to require an
unwilling defendant and prosecution to go to trial.
. . . .
The judge may withhold approval if he finds that the prosecutor has failed to give
consideration to factors that must be given consideration in the public interest, factors
such as the deterrent aspects of the criminal law. However, trial judges are not free to
withhold approval of guilty pleas on this basis merely because their conception of the
public interest differs from that of the prosecuting attorney. The question is not what
the judge would do if he were the prosecuting attorney, but whether he can say that the
action of the prosecuting attorney is such a departure from sound prosecutorial principle
as to mark it an abuse of prosecutorial discretion.
Ammidown, 497 F.2d 622. (Emphasis added.)
The reasons given by the trial judge in this case reflect nothing other than the judge's
opinion of the public interest. Moreover, we find that the trial court's reasoningthat the jury
must determine which offense, if any, the defendant is guilty ofis insufficient to support
the district court's rejection of the agreement.
104 Nev. 316, 324 (1988) Sparks v. State
cient to support the district court's rejection of the agreement. Therefore, we hold that the trial
judge abused his discretion.
Conclusion
We have carefully considered the assignments of error raised by appellant, and we
conclude that the State's mishandling of evidence and the errors of the district court require
that the judgment of conviction be reversed. Additionally, we vacate the $450 fine imposed
upon defense counsel as a sanction for Dr. O'Gorman's inadvertent mention of the word
polygraph.
____________
104 Nev. 324, 324 (1988) Judson v. Camelot Food, Inc.
AUDREY JUDSON, Appellant, v. CAMELOT FOOD, INC., dba ROUNDTABLE PIZZA;
ED VARGO, Individually and Doing Business as DESIGN SERVICES; ROBERT DULIK,
Individually and Doing Business as HACKMILL PRODUCTS, Respondents.
No. 18243
June 30, 1988 756 P.2d 1198
Appeal from summary judgment. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Restaurant patron brought action against restaurant for personal injuries sustained in
collapse of bench. Summary judgment for restaurant was granted by the district court and
patron appealed. The Supreme Court, Steffen, J., held that: (1) there were issues of fact
precluding summary judgment as to whether restaurant's inspections of the bench were done
in a reasonable manner, and (2) the case was appropriate for application of the doctrine of res
ipsa loquitur.
Reversed and remanded.
Springer, J., dissented.
Kenneth J. Jordan, Carson City, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Stephen S. Kent; Shamberger,
Georgeson, McQuaid & Thompson; Erickson, Thorpe, Swainston & Cobb, Reno, for
Respondents.
1. Judgment.
In action against restaurant for personal injuries sustained in collapse of wooden bench, there were issues
of fact precluding summary judgment as to whether restaurant's inspections of the bench were done in a
reasonable manner, even if they were done weekly, despite failure of plaintiff to identify any
specific defect in the bench, where restaurant, by destroying the bench, had made it
impossible for plaintiff to identify any defect.
104 Nev. 324, 325 (1988) Judson v. Camelot Food, Inc.
plaintiff to identify any specific defect in the bench, where restaurant, by destroying the bench, had made it
impossible for plaintiff to identify any defect.
2. Negligence.
Case in which restaurant bench collapsed, allegedly causing injuries to patron, was appropriate for
application of doctrine of res ipsa loquitur against restaurant, though patron failed to show that injury was
caused by some act or omission incident to restaurant's management, where restaurant was in exclusive
control of its benches, and was in better position than patron to explain cause of accident, and since seats
designed for use by patrons of commercial establishments do not ordinarily collapse without negligence in
their construction, maintenance or use.
3. Negligence.
Restaurant was in exclusive control of its benches for purposes of application of doctrine of res ipsa
loquitur against it when bench collapsed, even though bench was being used by patron, where inspection
and maintenance of the bench was in the exclusive control of restaurant and there was nothing to suggest
that patron's use of the bench was improper.
OPINION
By the Court, Steffen, J.:
The facts of the instant case are straightforward and undisputed. On the evening of March
16, 1985, appellant Audrey Judson, her husband, and another married couple entered the
Roundtable Pizza restaurant in Carson City, Nevada, to have dinner. A few minutes after the
four were seated at a table, Mr. Judson arose and suddenly, without warning, the wooden
bench upon which Mrs. Judson was seated collapsed and broke into two pieces. It is not
known what caused the bench to break, nor is it likely that the cause can ever be determined
because a day or two after the accident employees of the restaurant disposed of the bench.
Audrey Judson brought the instant action against Camelot Food, Inc., dba Roundtable
Pizza (Roundtable) for injuries she sustained in the accident. The district court granted
Roundtable summary judgment, finding that (1) Judson offered no evidence with respect to
any defect in the bench or any evidence that Defendants had notice of any problems or the
Defendant's acts were anything other than that of a reasonably prudent person, and (2)
Judson failed to present facts sufficient to entitle her to rely upon the doctrine of res ipsa
loquitur.
Discussion
On appeal, Audrey argues that the district court erred in granting summary judgment
because a genuine issue of fact remains as to whether Roundtable acted reasonably in
inspecting its benches for defects.
104 Nev. 324, 326 (1988) Judson v. Camelot Food, Inc.
remains as to whether Roundtable acted reasonably in inspecting its benches for defects. She
also claims the district court erred in not allowing her to rely upon the doctrine of res ipsa
loquitur.
[Headnote 1]
Summary judgment is appropriate where the pleadings, answers to interrogatories,
admissions and affidavits on file, show that there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Bird v. Casa Royal West, 97 Nev.
67, 69-70, 624 P.2d 17, 18 (1981). In its order granting summary judgment, the district court
noted that Audrey offered no evidence that Roundtable's acts were unreasonable or
imprudent; and based upon Roundtable's evidence, the latter's inspection of its benches was
reasonable. We note, however, that Roundtable's claim, that its bench inspection was
reasonable, was based solely on the deposition of Roundtable's manager, Lisa Mead. In her
deposition, Mead testified that she inspected all the benches weekly for signs of damage or
deterioration and that she never noted any signs of damage. Audrey claims that even if Mead
inspected the wooden benches weekly, a question of fact exists as to whether the inspections
were done in a reasonable manner. We agree.
In Twardowski v. Westward Ho Motels, 86 Nev. 784, 476 P.2d 946 (1970), a child was
injured on a swimming pool slide when the handrails on the ladder collapsed, causing her to
fall onto the cement. In discussing the duty of care of the motel-landowner, we noted:
The motel owed a duty to provide their patrons with a safe slide and to warn their
guests of any dangers known to them in using the slide. Their duty went further,
however, and included a duty to inspect the slide for latent or concealed dangers, and if
a reasonable inspection would have revealed such damages they were chargeable with
constructive notice of it. Whether the motel fulfilled these duties were questions of fact
to be submitted to the jury.
86 Nev. at 787-88, 476 P.2d at 948 (emphasis added). An analogous case is Pierson v. Seale,
128 So.2d 887 (Fla.App. 1961). Pierson brought an action against a restaurant for injuries he
received when a booth bench he was sitting on collapsed. As part of his complaint Pierson
alleged that the restaurant failed in its duty to properly inspect the bench. The trial court
granted summary judgment for the restaurant. In reversing, the appellate court noted:
Appellant contended that the showing as to inspection was insufficient, and that such
issue was not resolved. Appellees argued that the deposition of one of the defendants
established beyond issue that the duty to inspect was performed.
104 Nev. 324, 327 (1988) Judson v. Camelot Food, Inc.
. . . We hold that those uncontroverted facts are not sufficient, under the circumstances of
the injury in this case, to amount to a conclusive discharge as a matter of law of the duty
to inspect. There were genuine triable issues as to whether a proper and adequate
inspection, if made by defendants, could and should have disclosed the alleged defective
condition of the booth bench, and, if so, whether such an inspection was made.
128 So.2d 888 (emphasis added).
In the instant case, relying exclusively upon the deposition of its manager, Roundtable
argues that there is no issue of fact as to whether the manager's inspections were reasonable.
We disagree. Whether Roundtable's inspection was reasonable, and should have revealed the
defective condition of the bench, are properly questions of fact to be submitted to the jury.
These questions are especially triable issues where, as here, the respondent Roundtable
disposed of the bench causing the harm and thus made it unavailable for inspection.
1
Summary judgment, therefore, was improperly granted.
[Headnote 2]
Audrey's second point is that the district court erred in not allowing her to rely upon the
doctrine of res ipsa loquitur. We agree and hold that the facts of the instant case present the
type of situation to which the doctrine of res ipsa was intended to apply.
In Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985), we held that, A res
ipsa inference of negligence is permitted when one entity is shown to be in exclusive control
of the instrumentality causing harm, where the accident is one that does not ordinarily occur
in the absence of negligence, and where the defendant is in a better position to explain the
cause of the accident. 101 Nev. at 519, 706 P.2d at 1380. In the instant case, the court stated
that Audrey failed to make a showing that her injury was caused by some act or omission
incident to Roundtable's management and therefore Audrey was precluded from relying upon
res ipsa. As authority for this proposition, Roundtable relies upon the court-approved jury
instruction in Otis which stated in pertinent part:
It is a rule of law that negligence may be established without proof of specific acts or
omissions . . . if you find from the evidence the following: .
____________________

1
Since Roundtable was responsible for rendering the broken bench unavailable for inspection, we also reject
Roundtable's argument that summary judgment was proper because Audrey failed to identify any specific defect
in the bench. Obviously, due to the bench's destruction, Roundtable has made it impossible for Audrey to
identify any defect in the bench.
104 Nev. 324, 328 (1988) Judson v. Camelot Food, Inc.
. . . that the injury was caused by some act or omission incident to defendant's
management.
However, in Otis, after enunciating the three elements requisite to a res ipsa inference of
negligence, we noted that, Proof of exclusive control, the first element listed above,
substitutes for proof of the specific act constituting the breach when the latter two elements
are also satisfied. 101 Nev. at 519, 706 P.2d at 1380 (emphasis added). Consequently,
pursuant to the facts of the instant case, Audrey should have been allowed to place the issue
of res ipsa before a jury.
First, Roundtable presents no argument that it is not in a better position than Audrey to
explain the cause of the accident. It seems self-evident that a restaurant is in a better position
than its customers to explain the cause of one of its seats collapsing without warning. As far
as selection, maintenance, and inspection of its seats are concerned, the restaurant has
exclusive control. Second, seats designed for use by patrons of commercial establishments do
not ordinarily collapse without negligence in their construction, maintenance, or use. Husketh
v. Convenient Systems, Inc., 245 S.E.2d 507, 509 (N.C. 1978).
2

[Headnote 3]
Finally, we reject Roundtable's contention that it was not in the exclusive control of its
benches. A business proprietor retains exclusive control of seating while it is being properly
used by patrons. While it has been argued that a restaurant loses exclusive control over a
seat when it is used by a customerand one court has so held (Kilgore v. Shephard Co., 158
A. 720, 721 (R.I. 1932))this argument has been soundly criticized.
3
For example, in Rose
v. Melody Lane of Wilshire, 247 P.2d 335 (Cal. 1952), plaintiff brought an action for
personal injuries sustained when the stool on which he was sitting in defendant's cocktail
lounge collapsed. In holding that plaintiff was entitled to rely upon res ipsa, the Rose court
noted:
____________________

2
Rose v. Melody Lane of Wilshire, 247 P.2d 335, 338 (Cal. 1952). See Gow v. Multnomah Hotel, 224 P.2d
552 (Or. 1950); Gross v. Fox Ritz Theatre Corp., 55 P.2d 227 (Cal. 1936); Micek v. Weaver-Jackson Co., 54
P.2d 768 (Cal. 1936); and Billroy's Comedians v. Sweeney, 37 S.W.2d 43 (Ky. 1931).

3
As observed in Prosser on Torts:
[T]he strict and literal application of the formula [exclusive control] has led some courts to ridiculous
conclusions, requiring that the defendant be in possession at the time of the plaintiff's injuryas in the
Rhode Island case denying recovery where a customer in a store sat down in a chair, which collapsed. Of
course this is wrong; it loses sight of the real purpose of the reasoning process in attempting to reduce it
to a fixed, mechanical and rigid rule. Control, if it is not to be pernicious and misleading, must be a
very flexible term. W. Keeton, Prosser and Keeton on Torts, 249-50 (5th ed. 1984).
104 Nev. 324, 329 (1988) Judson v. Camelot Food, Inc.
Defendant and its agents were in exclusive control of the stool up to the time plaintiff
sat upon it. It is true that in one sense plaintiff was in control of the stool while he was
using it. . . . Such a view is artificial and ignores the purpose of the requirement that
Defendant have exclusive control. . . . Here it was the condition of the stool, not the use
made of it, that was responsible for the fall. Plaintiff had done no more than sit upon it
when it gave way, and there is no suggestion that his conduct was improper. So far as
construction, inspection, or maintenance of the stool were concerned, defendant had
exclusive control.
247 P.2d at 338. See Gresham v. Stouffer Corp., 241 S.E.2d 451 (Ga.App. 1978) (where clear
from the record that defendant owned and operated a restaurant and furnished chair to
business invitee, jury authorized to conclude that defendant was in full control of chair). In
the instant case, the inspection and maintenance of the benches were in the exclusive control
of Roundtable. There is nothing in the record to suggest that Audrey's conduct or use of the
bench was improper.
Accordingly, it was error for the district court to deny Audrey an opportunity to rely upon
the doctrine of res ipsa; the facts of the instant case present the type of situation to which the
doctrine of res ipsa was intended to apply.
4
Because genuine issues of fact remain and
Audrey was entitled to rely upon res ipsa, we reverse the summary judgment and remand the
case for trial.
Gunderson, C. J., and Young and Mowbray, JJ., concur.
Springer, J., dissenting:
I am not disposed to overturn the trial court's judgment in this case. Audrey Judson was
injured when she sat on a bench that collapsed underneath her.
____________________

4
Allowing a res ipsa theory under the type of facts in the case at bar finds wide support in other jurisdictions.
See e.g., Hull v. L. & A. Montagnard Social Club, Inc., 498 A.2d 597 (Me. 1985) (despite neither defendant nor
plaintiff offering evidence as to what caused metal chair to collapse, causing plaintiff injury, case was proper for
res ipsa instruction to jury); Gresham v. Stouffer Corp., 241 S.E.2d 451 (Ga.App. 1978) (where plaintiff was
injured when his chair collapsed at defendant's restaurant and he presented no evidence of any specific instance
of negligence by the restaurant, it was error for the trial court to hold that res ipsa did not apply); Husketh v.
Convenient Sys., Inc., 245 S.E.2d 507 (N.C. 1978) (where plaintiff injured due to collapse of defendant's bar
stool in ice cream parlor, case was sufficient for res ipsa doctrine); Sweet v. Swangel, 166 N.W.2d 776 (Iowa
1969) (res ipsa applicable in situation where plaintiff was injured when chair in which he was sitting in his motel
room collapsed); Wheeler v. Corner, 170 N.W.2d 883 (S.D. 1969) (even though alleging specific acts of
negligence, plaintiff entitled to rely on res ipsa where she sustained injures when foot rest of stool gave way and
stool tipped over). See also, Tuso v. Markey, 294 P.2d 1102 (N.M. 1956); Rose v. Melody Lane of Wilshire,
247 P.2d 335 (Cal. 1952).
104 Nev. 324, 330 (1988) Judson v. Camelot Food, Inc.
collapsed underneath her. In reference to the bench, an independent witness testified that a
wooden member just snapped, broke right in half, thereby plummeting Audrey Judson to
the floor.
There is nothing in the record to show that the restaurant had anything to do with the
snapping wood, nothing to show that inspection, repair, maintenance or other activity on the
part of Roundtable management would have or could have kept the wooden bench from
snapping and breaking right in half.
Audrey Judson may have an action of some kind against the designer or manufacturer or
supplier of the bench, but I agree with the trial court that there is nothing in the record to
support a negligence action against the restaurant. To the contrary, it is undisputed that
Roundtable reasonably and regularly inspected all benches on the premises. In all probability,
the type of product defect involved here could have been discovered only by some kind of
refined engineering or material analysis not normally a part of a restaurant operation. The fact
that the bench is no longer available for inspection might have an adverse effect on a products
liability claim against the designer, manufacturer or supplier of this bench, but I cannot see
the loss of the bench as substantially prejudicing Audrey Judson's case against Roundtable,
absent a showing of intentional wrongdoing on its part.
Finally, I do not see this as a res ipsa loquitur case. As stated in American Elevator Co. v.
Briscoe, 93 Nev. 665, 669, 572 P.2d 534, 537 (1977), the plaintiff must at least show that it
is more probable than not that the injury resulted from defendant's breach of duty. As I see it,
it is not at all probable that Audrey Judson's injuries were caused by roundtable's negligence;
in fact, it is highly improbable that any claimed failure of Roundtable to inspect the bench or
any other fault of Roundtable's contributed to this injury.
As we have stated in previous cases, the owner or occupant of property is not an insurer
of the safety of an invitee thereon; that the mere fact there was an accident or other event and
someone was injured is not of itself sufficient to predicate liability. Negligence is never
presumed but must be established by substantial evidence. Eggers v. Harrah's Club, Inc., 86
Nev. 782, 784, 476 P.2d 948, 949-50 (1970) (citation omitted). Thus, merely showing that the
bench collapsed is insufficient, without more, to establish a breach of Roundtable's duty to
provide reasonably safe business premises to its customers. I would affirm.
___________
104 Nev. 331, 331 (1988) Haertel v. Sonshine Carpet Co.
JAMES HAERTEL, a Minor, by and Through His Mother, JEAN BORREGARD, as Next
Friend, and JEAN BORREGARD, Individually, Appellants, v. THE SONSHINE CARPET
COMPANY, CLARK COUNTY SCHOOL DISTRICT and DOW CHEMICAL COMPANY,
Respondents.
No. 16299
June 30, 1988 757 P.2d 364
Rehearing of Haertel v. Sonshine Carpet Co., 102 Nev. 614, 730 P.2d 428 (1986). Eighth
Judicial District Court, Clark County; Michael J. Wendell, Judge.
Injured minor employee brought action against employer and employer's joint venturers.
The district court dismissed action and employee appealed. The Supreme Court, 730 P.2d
428, affirmed in part, reversed in part and remanded. On rehearing, the Supreme Court held
that joint venturers of employer, which were immune from common law liability by worker's
compensation coverage, were likewise immune from employee's action.
Rehearing granted; affirmed in part, modified in part.
Frank J. Cremen; Galatz, Earl & Catalano, Las Vegas, for Appellants.
Richard B. Parnell, Las Vegas, for Respondent The Sonshine Carpet Company.
Rawlings, Olson & Cannon, Las Vegas, for Respondent Dow Chemical Company.
Barker, Gillock, Koning, Brown & Earley and Janice J. Brown, Las Vegas, for
Respondent Clark County School District.
1. Worker's Compensation.
Partnership is immune from common law liability for tortious acts of partner who himself, by virtue of
worker's compensation coverage, is immune from liability.
2. Worker's Compensation.
Joint venturers of employer, which were immune from common law liability by virtue of worker's
compensation coverage were likewise immune from suit by employee who was injured during course and
scope of employment; requiring each and every joint venturer to obtain worker's compensation insurance to
cover same employee would be unnecessary duplication of costs.
104 Nev. 331, 332 (1988) Haertel v. Sonshine Carpet Co.
OPINION ON REHEARING
Per Curiam:
This case originally involved an appeal from an order of the district court dismissing a
civil action. Appellant Haertel, a minor, was employed as a laborer by respondent Sonshine.
Sonshine entered into a joint venture with respondent Clark County School District (CCSD)
and respondent Dow Chemical Co. (Dow) to repair and replace carpeting at various CCSD
facilities. While performing his duties as a laborer, Haertel received serious injuries when he
and a juvenile co-worker attempted to move a cabinet. Haertel filed a tort action against
respondents, alleging that respondents had entered into a joint venture to repair and replace
carpeting at various CCSD facilities, and that his injuries were caused by respondents'
negligence. The district court dismissed Haertel's complaint, however, ruling that Haertel's
exclusive remedy was worker's compensation.
Following oral argument on the matter, on December 23, 1986 we published an opinion in
which we affirmed the dismissal of the complaint as to Sonshine, but reversed the portion of
the district court's order dismissing Haertel's complaint against CCSD and Dow. Haertel v.
Sonshine Carpet Co., 102 Nev. 614, 730 P.2d 428 (1986). In a petition for rehearing, Dow
and CCSD claim that because this court determined Sonshine was immune from liability in
tort due to the exclusive remedy provisions of the worker's compensation law, CCSD and
Dowas members of the joint venturealso cannot be held liable in tort for Haertel's
injuries. CCSD and Dow further claim that our opinion in Watson v. G.C. Associates, Ltd.,
100 Nev. 586, 691 P.2d 417 (1984), warrants this conclusion. We agree and modify that
portion of our decision allowing Haertel's action to proceed against CCSD and Dow.
In Watson, we addressed the issue of common law liability of a partnership for injuries
suffered by a worker in the course and scope of her employment. Watson, an employee of the
Las Vegas Sun, received worker's compensation benefits for injuries suffered on the job. She
then filed a complaint against G.C. Associates (G.C.), a limited partnership and owner of the
building which housed the Las Vegas Sun. Specifically, Watson alleged that G.C., as
landlord, had been negligent in maintaining the building and was therefore liable as a third
party tortfeasor for her injuries. The district court granted G.C.'s motion for summary
judgment on the ground that the general partners of the partnership were co-employees of
Watson and therefore immune from common law liability pursuant to the Nevada
Industrial Insurance Act {NIIA), NRS 616.560.
104 Nev. 331, 333 (1988) Haertel v. Sonshine Carpet Co.
from common law liability pursuant to the Nevada Industrial Insurance Act (NIIA), NRS
616.560.
[Headnote 1]
On appeal, Watson conceded that the general partners were her co-employees and were
therefore immune from suit. She contended, however, that the partnership could nevertheless
be held liable for her injuries. We disagreed, stating:
Under the act, the partnership is liable for loss or injury resulting from any wrongful
act or omission of any partner acting in the ordinary course of the business . . . to the
same extent as the partner so acting or omitting to act . . . (NRS 87.130) and all
partners are liable jointly and severally for everything chargeable to the partnership
under NRS 87.130. NRS 87.150(1). To hold the partnership liable in this case would,
therefore, necessarily be to hold the partners liable as well, despite the policy of the
NIIA.
Faced with a similar problem, the New York Court of Appeal held that a partnership
was immune from liability for the tortious acts of a partner who was himself immune
from liability. Caplan v. Caplan, 198 N.E. 23 (N.Y. 1935). The court noted that [i]n
the field of liability for torts [where liability is joint and several] it is especially
apparent that a partnership cannot be regarded as an entity independent of the persons
who compose it. Id. at 25. See also Belleson v. Skilbeck, 242 N.W. 1 (Minn. 1932)
(no right of action remains against partnership when neither partner is liable). Contra
Eule v. Eule Motor Sales, 170 A.2d 241 (N.J. 1961) (entity theory). In the field of
workmen's compensation, it has been held, analogously, that where the partnership was
immune as an employer under the act, a partner could not be liable for negligence in his
capacity as a landlord. Williams v. Hartshorn, 69 N.E.2d 557 (N.Y. 1946). Other courts
have similarly refused to allow suits against partners when the partnership were
immune under workmen's compensation statutes. [Citations omitted.]
100 Nev. at 589, 691 P.2d at 418-19. We agree with CCSD and Dow that Watson stands for
the proposition that a partnership is immune from common law liability for the tortious acts
of a partner who himself, by virtue of worker's compensation coverage, is immune from
liability. Indeed, this is precisely the conclusion of a number of courts who have addressed
this issue.
In Cook v. Peter Kiewit Sons Company, 386 P.2d 616 (Utah 1963), appellant Kiewit
entered into a joint venture with Coker, another construction company, to construct a
diversion tunnel at the Flaming Gorge Dam in northeastern Utah.
104 Nev. 331, 334 (1988) Haertel v. Sonshine Carpet Co.
the Flaming Gorge Dam in northeastern Utah. Cook, an employee of Coker, was injured
when an explosive charge left in the tunnel accidentally detonated. Cook applied for and
received workmen's compensation benefits for his injuries, and then instituted an action in
tort against Kiewit. Kiewit filed a motion for summary judgment contending that Cook's sole
remedy was workmen's compensation. The trial court denied the motion. The Supreme Court
of Utah reversed, noting,
It is not disputed that this was a joint venture by which the plaintiff's employer,
Coker, and Kiewit agreed to join together in constructing this tunnel and to share profits
or losses in the enterprise. Being so united for a common purpose for mutual profit,
these companies became partners in the venture just the same as if two individuals had
entered into it, and whatever one company and its employees did in furthering the
project would inure to the benefit of the other. Accordingly, it would seem that Coker's
act in paying premiums for workmen's compensation to protect itself against loss
should also redound to the benefit of Kiewit and vice versa.
Id. at 617-18 (emphasis added).
Similarly, in Felder v. Old Falls Sanitation Co., Inc., 366 N.Y.S.2d 687 (N.Y.App.Div.
1975), a fourteen-year-old boy was severely injured while working illegally as a driver's
helper on a garbage truck owned by Old Falls. Old Falls was, in turn, engaged in a joint
venture with two other sanitation companies (Town and Mountaindale) to collect refuse in a
specified area. After being injured, the boy filed a tort action against Old Falls, Town and
Ruderman, the corporate secretary for both Town and Old Falls. The trial court granted
summary judgment in favor of Town and Ruderman, holding that the plaintiff's only remedy
against those defendants was worker's compensation. However, the trial court also granted the
plaintiff's motion for summary judgment on the issue of Old Falls' liability and ordered a trial
on the issue of damages. In reversing the summary judgment entered against Old Falls, the
appellate division states:
Since Old Falls was a participant in joint venture with Town, plaintiff is limited to his
compensation remedy against each of these defendants which are both insulated from
tort liability by . . . the Workmen's Compensation Law. [Citation omitted.]
Id. at 689.
In Connor v. El Paso Natural Gas Co., 599 P.2d 247 (Ariz.Ct.App. 1979), Connor's
husband was killed in a mine explosion. After receiving worker's compensation benefits,
Connor filed a wrongful death action against the mining company {Hecla) and El Paso,
Hecla's joint venturer.
104 Nev. 331, 335 (1988) Haertel v. Sonshine Carpet Co.
filed a wrongful death action against the mining company (Hecla) and El Paso, Hecla's joint
venturer. Hecla and El Paso moved for summary judgment, contending that Connor's action
was barred by the exclusive remedy provision of the worker's compensation laws. Summary
judgment was granted to both Hecla and El Paso. On appeal, Connor claimed that the trial
court erred in granting El Paso's motion for summary judgment because the decedent was
employed only by Hecla. The Arizona Court of Appeals disagreed, stating:
For purposes of workmen's compensation, each individual joint venturer is the
employer of all employees during work on behalf of the joint venture . . . and each
enjoys the exclusive remedy provisions. [Citations omitted.]
Id. at 249. See also Boatman v. George Hyman Const. Co., 276 S.E.2d 272 (Ga.Ct.App.
1981); Guilbeau v. Liberty Mutual Insurance Company, 324 So.2d 571 (La.Ct.App. 1975)
modified, 338 So.2d 600 (La. 1976); Lewis v. Gardner Engineering Corp., 491 S.W.2d 778
(Ark. 1973); Fallone v. Misericordia Hospital, 259 N.Y.S.2d 947 (N.Y.App.Div. 1965), aff'd,
269 N.Y.S.2d 431 (N.Y. 1966).
[Headnote 2]
In the instant case, it is undisputed that CCSD, Dow and Sonshine were joint venturers. It
is also undisputed that Sonshine was enrolled in the State Industrial Insurance System.
Because Sonshine isby virtue of worker's compensation coverageimmune from common
law liability (see NRS 616.370), Watson controls, and CCSD and Dow as joint venturers are
likewise immune from suit by Haertel. A contrary ruling appears not only to counter the
policy of the NIIA, but implies that in order to provide worker's compensation as an
employee's exclusive remedy, each and every partner or joint venturer would have to obtain
worker's compensation insurance to cover the same employees. This would be an unnecessary
duplication of costs. Furthermore, consonant with the principle of shared liability of joint
venturers for their acts (see NRS 87.150, 87.130), we conclude that it is likewise equitable
that, where a joint venturer has paid premiums for workmen's compensation to protect itself
against loss, the benefit of the protection should also accrue to the other joint venturers.
Accordingly, we modify that portion of the Haertel opinion which previously allowed
Haertel to pursue his tort claim against CCSD and Dow.
____________
104 Nev. 336, 336 (1988) Kimberly v. State
LEONARD CLEON KIMBERLY, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 17326
July 14, 1988 757 P.2d 1326
Appeal from judgment of conviction upon jury verdict for sexual assault. Eighth Judicial
District Court, Clark County; Miriam Shearing, Judge.
Defendant was convicted of sexual assault on another man following trial in the district
court and he appealed. The Supreme Court held that evidence of a claimed similar assault by
defendant on his roommate lacked sufficient reliability to be admissible considering, inter
alia, grand jury's failure to return a true bill as to that incident.
Reversed and remanded.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
In prosecution of defendant for sexual assault on another man based on testimony of victim that
defendant had fellated victim while victim was sleeping, without victim's consent, testimony of defendant's
roommate to a similar act committed on roommate by defendant was not sufficiently reliable to be
admissible considering, inter alia, grand jury's failure to return a true bill on count involving the roommate,
and error in admitting testimony of the other incident required reversal where evidence against defendant
was not overwhelming. NRS 48.045, subd. 2.
OPINION
Per Curiam:
Leonard Cleon Kimberly stands convicted of the sexual assault of another man, one
Leland Horrocks. Horrocks claims that he was sleeping on Kimberly's couch in Kimberly's
mobile home and awoke at around 3:00 a.m. to find that his Levis were unbuttoned and that
Kimberly was fellating him. Horrocks did not say anything at that time; instead, Horrocks
rolled over and waited for Kimberly to leave the room. After Kimberly left the room,
Horrocks went to his car and drove home.
There is no evidence in the record that Horrocks at the time objected to Kimberly's
advances. Horrocks himself testified that his only response upon discovering that Kimberly's
nocturnal attentions had caused Horrocks to ejaculate was to roll over.
104 Nev. 336, 337 (1988) Kimberly v. State
attentions had caused Horrocks to ejaculate was to roll over. The sole evidence that
Kimberly's activities might have constituted an unlawful touching is found in Horrock's trial
testimony: No. I never gave him no permission to do no such thing.
Kimberly does not, however, challenge his conviction on the ground that the corpus delicti
of the crime of rape was not established. Rather, he raises a serious evidential point: that the
trial court erred in admitting testimony by Kimberly's roommate, Larry Buske, that Kimberly
had engaged Buske in a similar fashion, that is to say by visiting him in the night and fellating
him without first having obtained permission to do so.
Under Nevada's rules of criminal evidence, [e]vidence 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. NRS 48.045(2). Such evidence, however, may be admissible for a purpose not
related to the character of the defendant, such as showing motive, intent, preparation or plan.
NRS 48.045(2). The danger in bringing in evidence of prior bad acts is obvious.
Consequently, we have insisted that before evidence of a prior bad act can be admitted, the
state must show, by plain, clear and convincing evidence that the defendant committed the
offense. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Fundamental
fairness demands this standard in order to preclude verdicts which might otherwise rest on
false assumptions. Tucker v. State, 82 Nev. 127, 131, 412 P.2d 970, 972 (1966).
A motion in limine was filed at the time of the trial to exclude the testimony of Buske
concerning the claimed sexual activities with his roommate Kimberly. The prosecution
argued that the testimony should be admitted on the multiple grounds that it was probative of
Kimberly's motive, intent, plan and identity. The trial court decided to admit the roommate's
testimony under the authority of NRS 48.045(2) but made no reference to the specific
exception making the testimony admissible. After reviewing the record, we conclude that it is
unnecessary to determine whether there was an appropriate basis within the evidence code to
justify admission of testimony concerning the Buske incident.
The state had sought to indict Kimberly for his alleged sexual assault on Buske. The grand
jury, after hearing Buske's testimony concerning the alleged incident, refused to return a true
bill against Kimberly on the Buske count. Our consideration of the complex of factors,
including the grand jury's refusal to indict, the relationship between Buske and the current
victim's sister, and other circumstances tending to detract from reliability, convince us that
there was a failure to show by the requisite plain, clear and convincing evidence that
Kimberly had committed the earlier offense against Buske.
104 Nev. 336, 338 (1988) Kimberly v. State
earlier offense against Buske. The mere fact that the grand jury did not consider Buske's
testimony sufficiently trustworthy to support a true bill is a sufficient reason to disqualify the
testimony under the clear and convincing evidence standard. Accordingly, it was error to
admit the testimony at issue.
The trial court's error in admitting testimony relating to Kimberly's and Buske's alleged
sexual activity affected Kimberly's substantial rights. See McMichael v. State, 98 Nev. 1, 638
P.2d 402 (1982). The evidence of Kimberly's guilt may certainly not be described as
overwhelming. The bulk of the evidence against Kimberly came from only two witnesses,
one of whom was the alleged victim. Moreover, five defense witnesses testified that
Kimberly had no homosexual tendencies, and several defense witnesses described Kimberly
as honest and gentlemanly.
We hold that it was error for the trial court to allow Buske to testify about his sexual
activities with Kimberly because the state failed to show by clear and convincing evidence
that Kimberly sexually battered his roommate. We further hold that the trial court's error
mandates reversal because it affected Kimberly's substantial rights. We therefore reverse the
judgment of conviction and remand for a new trial.
____________
104 Nev. 338, 338 (1988) DePasquale v. State
VINCENT WALT DePASQUALE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18169
July 14, 1988 757 P.2d 367
Appeal from judgment of conviction of one count of larceny from the person. Eighth
Judicial District Court, Clark County; Miriam Shearing, Judge.
Defendant was convicted in the district court of larceny from person, and sentenced to ten
years. Defendant appealed. The Supreme Court, Young, J., held that: (1) fact that money in
shoulder bag was exposed so as to be visible to person nearby was insufficient to establish
entrapment of defendant convicted of larceny from person, and (2) sentence was not cruel and
unusual or abuse of discretion.
Affirmed.
Ward & Maglaras, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, and John Ham, Deputy District Attorney, Clark County,
for Respondent.
104 Nev. 338, 339 (1988) DePasquale v. State
John Ham, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Fact that money in shoulder bag was exposed so as to be visible to person nearby is insufficient to
establish entrapment of defendant convicted of larceny from person, where exposed valuables were
presented in realistic situation of an alert and well-dressed woman walking on open sidewalks in casino
area.
2. Criminal Law; Larceny.
Sentence of ten years imposed upon defendant convicted of larceny from person, even though maximum
allowed by law, was neither cruel and unusual nor abuse of discretion. U.S.C.A.Const. Amend. 8.
OPINION
By the Court, Young, J.:
Appellant, Vincent DePasquale, and his co-defendant, Randall DeBelloy, were arrested on
May 1, 1983, and charged with larceny from the person. The case was tried before a jury, and
both DePasquale and his co-defendant were convicted. We affirm that judgment of
conviction.
Four officers on the LVMPD's S.C.A.T. Unit (Street Crime Attack Team) were performing
a decoy operation near the intersection of Fremont Street and Casino Center Blvd. in Las
Vegas on April 30, 1983, at 11:45 p.m. Officer Debbie Gautwier was the decoy, and Officers
Shalhoob, Young, and Harkness were assigned to back-up.
Officer Gautwier was dressed in plain clothes and was carrying a tan shoulder bag draped
over her left shoulder. Within one of the side, zippered pockets of the bag, she had placed a
$5 bill and $1 bill wrapped with a simulated $100 bill. The money, including the numbers of
the simulated $100 bill, were exposed so as to be visible to persons near by; however, the
zipper was pulled tight against the money so as to require a concentrated effort to remove it.
Officer Young, also in plain clothes, was standing approximately six to seven feet away
from Officer Gautwier (the decoy), near the entrance of the Horseshoe Club, when Randall
DeBelloy approached Officer Gautwier from behind and asked if he could borrow a pen.
Officer Gautwier stated that she did not have a pen, and DeBelloy retreated eight to ten feet.
Within a few seconds he approached a second time, asking for a piece of paper. Again the
response was no. During these approaches Officer Young observed DeBelloy reach around
Officer Gautwier toward the exposed cash.
104 Nev. 338, 340 (1988) DePasquale v. State
DeBelloy again retreated eight to ten feet from Officer Gautwier. He then motioned with
his hand to two men who were another eight to ten feet away, and the trio huddled together
for 15 to 30 seconds. As DeBelloy talked with the two men, he looked up and over in the
direction of Officer Gautwier. Vincent DePasquale was one of the two men who joined
DeBelloy in this huddle.
While this trio was conversing, Officer Gautwier had been waiting for the walk signal at
the intersection. When the light changed, she crossed Fremont Street and proceeded
southbound on the west sidewalk of Casino Center Blvd. DePasquale and DeBelloy followed
her, 15 to 20 feet behind.
1
After crossing the street, Officer Gautwier looked back briefly and
saw DeBelloy following her. DePasquale was four to seven feet behind DeBelloy and to his
right.
As they walked in this formation, DePasquale yelled out, Wait lady, can I talk to you for a
minute. As Officer Gautwier turned to her right in responseseeing DePasquale whom she
identified in courtDeBelloy took a few quick steps to her left side, took the money with his
right hand and ran. DeBelloy was arrested, with the marked money in his possession, by
Officers Harkness and Shalhoob. DePasquale was arrested by Officers Gautwier and Young.
Both were charged with larceny from the person and convicted by a jury.
DePasquale argues that he was entrapped, that the district court erred in its instruction to
the jury on the law of entrapment, that the evidence fails to support the verdict, and that the
sentence of ten years is disproportionate and, therefore, cruel and unusual.
In Shrader v. State, 101 Nev. 499, 504, 706 P.2d 834, 837 (1985), we stated that
entrapment encompasses two elements: (1) an opportunity to commit a crime is presented by
the state (2) to a person not predisposed to commit the act. Thus, this subjective approach
focuses upon the defendant's predisposition to commit the crime.
In both Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985), and Oliver v. State, 101
Nev. 308, 703 P.2d 869 (1985), the decoys were disguised as intoxicated or sleeping
vagrants. Their money was exposed temptingly from pockets which were readily accessible.
Similarly, in Sheriff v. Hawkins, 104 Nev. 70, 752 P.2d 769 (1988), we held that the
defendant had been entrapped when the decoy was not disguised as a vagrant but rather was
well dressed; however, paralleling Moreland and Oliver, the decoy was apparently helpless,
intoxicated, and feigned unconsciousness with cash hanging from his pocket. It is this degree
of vulnerability, exemplified in Hawkins, Moreland, and Oliver by the decoy's feigned lack
of consciousness, which cloaks any suggestion of the defendant's predisposition.
____________________

1
The third man left the huddle and walked away, having no further involvement in the crime.
104 Nev. 338, 341 (1988) DePasquale v. State
vulnerability, exemplified in Hawkins, Moreland, and Oliver by the decoy's feigned lack of
consciousness, which cloaks any suggestion of the defendant's predisposition. Furthermore,
the entire scenario of the decoy operations was devoid of any relation to an identified crime
pattern.
[Headnote 1]
In contrast, in the present case, the cash, although exposed, was zipped tightly to the edge
of a zippered pocket, not hanging temptingly from the pocket of an unconscious derelict.
Admittedly, the money was exposed; however, that attraction alone fails to cast a pall over
the defendant's predisposition. The exposed valuables (money) were presented in a realistic
situation, an alert and well-dressed woman walking on the open sidewalks in the casino area.
The fact that the money was exposed simply presented a generally identified social predator
with a logical target. These facts suggest that DePasquale was predisposed to commit this
crime. Furthermore, the fact that DePasquale had no contact with the decoy but rather
succumbed to the apparent temptation of his co-defendant to systematically stalk their target,
evidences his predisposition.
We hold that the jury was properly instructed on the law of entrapment, see Hill v. State,
95 Nev. 327, 331, 594 P.2d 699, 709 (1979), and that the jury's finding of guilt is supported
by sufficient evidence, see Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981);
Edwards v. State, 90 Nev. 255, 258-259, 524 P.2d 328, 331 (1974).
[Headnote 2]
Lastly, DePasquale complains that his sentence was disproportionate to the crime and,
therefore, cruel and unusual punishment. In Schmidt v. State, 94 Nev. 665, 668, 584 P.2d
695, 697 (1978), we stated that statutes enacted by the state legislature are presumed valid;
however, a sentence is unconstitutional if it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human dignity. . .
. While the punishment authorized in Nevada is strict, it is not cruel and unusual.
Furthermore, we conclude that the trial judge did not abuse his discretion in sentencing
DePasquale to the maximum term under this statute. Deveroux v. State, 96 Nev. 388, 390,
610 P.2d 722, 723 (1980).
We have fully examined the remaining issues raised by appellant and conclude they are
without merit.
2
Accordingly, we affirm the judgment of conviction.
____________________

2
We note that the appropriate vehicle for presenting a claim of ineffective assistance of counsel is through
post conviction relief. Gibbons v. State, 97 Nev. 520, 522-523, 634 P.2d 1214, 1216 (1981).
104 Nev. 338, 342 (1988) DePasquale v. State
Gunderson, C. J., and Springer and Mowbray, JJ., concur.
Steffen, J., concurring:
I respectfully concur in the result.
____________
104 Nev. 342, 342 (1988) Verheyden v. Verheyden
WILLIAM FRANCIS VERHEYDEN, Appellant, v.
WINIFRED CAMILLE VERHEYDEN, Respondent.
No. 18214
July 14, 1988 757 P.2d 1328
Appeal from judgment of divorce entered by the district court. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
The district court entered judgment of divorce, including award to wife of interest in
residence owned by husband as his separate property prior to marriage. Husband appealed.
The Supreme Court held that: (1) house acquired by husband prior to marriage was his
separate property; (2) evidence was insufficient to support determination that community
acquired interest in home either by making contributions to purchase price or by paying for
improvements during marriage; and (3) evidence was insufficient to rebut presumption that
automobile acquired during marriage was a community property.
Reversed and remanded.
Eva Garcia, Las Vegas, for Appellant.
Morse & Mowbray, and Christopher R. McCullough, Las Vegas, for Respondent.
1. Husband and Wife.
Home acquired by husband prior to marriage was his separate property where there was no evidence that
husband intended to transmute house into community property. NRS 123.130.
2. Husband and Wife.
Community did not acquire interest in home owned by husband as his separate property where home was
not encumbered by purchase money mortgage on which community made payments. NRS 123.130.
3. Husband and Wife.
Evidence that community indirectly contributed to purchase price of home which husband obtained from
his sister prior to marriage in exchange for other property, by continuing to make mortgage payments on
property which sister had obtained and by paying sister difference between mortgage payments on two
homes did not establish community interest in separate property, in that there was no
evidence of direct contributions by community to home in which parties live.
104 Nev. 342, 343 (1988) Verheyden v. Verheyden
interest in separate property, in that there was no evidence of direct contributions by community to home in
which parties live. NRS 123.130.
4. Husband and Wife.
Community did not acquire interest in home owned by husband and his separate property prior to
marriage by virtue of improvements made during marriage, where evidence was insufficient to determine
that any improvements were made from community funds, and it appeared that expenditures that were
made on house were merely for routine maintenance. NRS 123.130.
5. Evidence.
Determination that house was worth only $45,000.00 at time husband acquired it as his separate property,
and had subsequently appreciated in value during marriage, was clearly erroneous in light of undisputed
expert testimony that value of house was $84,000.00 at that time and that property values in area actually
decreased during period of parties' marriage.
6. Husband and Wife.
Mere oral expression by spouse that automobile purchased during marriage is gift to other spouse does
not satisfy level of clear and certain proof necessary to overcome presumption of community property.
7. Husband and Wife.
Determination that presumption of community property was overcome by clear and certain proof that
husband gave vehicle titled in both their names to wife during marriage was unsupported by substantial
evidence in record.
OPINION
Per Curiam
1
:
Appellant William Verheyden claims that the district court erred in two respects: (1) by
awarding to his wife, respondent Camille, a $19,125.00 interest in a residence owned by him
as his separate property; and (2) by awarding to Camille, on the ground that it was a gift from
William, the 1982 Honda automobile jointly owned by the parties. We agree with William
and reverse the trial court's judgment with respect to both the house and the car.
The House
The house in question, located at 4861 Santa Barbara Street, Las Vegas, was acquired by
William in January 1981, before he married Camille. He took title to the house in an
exchange transaction in which he traded another less valuable house to his sister, Lillian. To
make up for the difference in value, William cancelled a debt owed to him by his sister in
the amount of $30,000.00.
____________________

1
The Honorable John Mowbray, Justice, has voluntarily disqualified himself from consideration of this case.
104 Nev. 342, 344 (1988) Verheyden v. Verheyden
cancelled a debt owed to him by his sister in the amount of $30,000.00.
[Headnote 1]
Since William owned the Santa Barbara Street house prior to his marriage to Camille, and
since there is no evidence that William intended to transmute the house to community
property, the house is William's separate property. See NRS 123.130. Camille argues,
however, that the community acquired an interest in the Santa Barbara Street house by (1)
contributing to its purchase price, and (2) by contributing to improvements made on the
house. We are unpersuaded by either argument.
[Headnotes 2, 3]
We deal first with Camille's argument that the community acquired an interest in the Santa
Barbara Street house by contributing to its purchase price. In Sly v. Sly, 100 Nev. 236, 239,
679 P.2d 1260, 1262 (1984), we wrote that [w]here part of the purchase price of one
spouse's separate property is paid with community funds, the community acquires a pro tanto
interest in the property to the extent and in the proportion that the purchase price is
contributed by the community. See also Robison v. Robison, 100 Nev. 668, 691 P.2d 451
(1984); Barrett v. Franke, 46 Nev. 170, 208 P. 435 (1922). In the present case, the record fails
to support Camille's contention that the community contributed to the purchase price of the
Santa Barbara Street house. It is undisputed that William acquired the Santa Barbara Street
house prior to his marriage in an exchange agreement with his sister. This exchange was
accomplished by quitclaim deeds. No purchase money mortgage was created on which the
community made payments. Had there been such a purchase money mortgage on the Santa
Barbara Street house, and had Camille been able to prove that the principal on that mortgage
was reduced by payments made with community funds, her position that the community
acquired a pro tanto interest in the marital residence would be tenable. Such is not the case,
however.
2
[Headnote 4]
[Headnote 4]
____________________

2
Apparently William's sister continued to make monthly mortgage payments on the Santa Barbara Street
house after the exchange, while William and Camille continued to make monthly mortgage payments on the
house William traded his sister. According to Camille, each month she and William additionally paid William's
sister the difference between the two mortgage payments, money which William's sister presumably applied to
the mortgage on the Santa Barbara Street house.
We are not oblivious to Camille's argument that the community indirectly contributed to the purchase price
of the Santa Barbara Street house by continuing to make monthly mortgage payments on the less valuable house
William traded his sister and by paying William's sister the difference between the mortgage payments on the
two houses. Nevertheless, we decline to extend Sly to the circumstances of the present case since it cannot be
said
104 Nev. 342, 345 (1988) Verheyden v. Verheyden
[Headnote 4]
Camille's second argument, that the community acquired an ownership interest in the
Santa Barbara Street house by virtue of the improvements that were made on the property
during the marriage, fails for two reasons: First, the record fails to provide substantial
evidence that these improvements were made from community funds rather than from
William's separate funds. Second, there is no evidence in the record that these improvements
increased the value of the house. To the contrary, it appears that the expenditures that were
made on the house were merely for routine maintenance.
[Headnote 5]
Given the absence of substantial evidence in the record to support the trial court's award to
Camille of an interest in William's house on Santa Barbara Street, we are compelled to
reverse.
3
See Todkill v. Todkill, 88 Nev. 231, 238, 495 P.2d 629, 633 (1972) (findings of
trial court will be reversed if unsupported by substantial evidence).
The Automobile
The trial court found that William made a gift to Camille of the 1982 Honda automobile
owned by the parties. William testified that the 19S2 Honda was purchased during the
marriage. "Clear and certain proof is required to rebut the presumption that property
acquired during marriage is community property." Roggen v. Roggen, 96 Nev. 6S7, 6S9
____________________
that the community directly contributed to the purchase price of that particular separate property in which the
community seeks to establish an ownership interest. The extra money that the community paid William's sister
does not affect this conclusion as it is uncertain that the sister actually applied the money to reducing the
principal on the mortgage on the Santa Barbara Street house.

3
As stated above, the trial court incorrectly concluded that the community had acquired a pro tanto interest in
William's separate property house on Santa Barbara Street. Additionally, the trial court was incorrect in finding
that the Santa Barbara Street house had appreciated in value by $38,250.00 during the marriage. The trial court
obtained this figure by first concluding that the value of the Santa Barbara Street house at the time of the
exchange was $45,000.00. The trial court then subtracted $45,000.00 from $83,250.00, the appraised value of
the same property at the time of the divorce, to arrive at the $38,250.00 figure for the community's interest.
We believe that the trial court's valuation of the Santa Barbara Street house at $45,000.00 at the time of the
exchange was clearly erroneous in light of undisputed expert testimony that the value of the house in 1981 was
$84,000.00 and that property values in the area in which the house was located had actually decreased during the
period William and Camille were married. In reaching its decision that the value of the Santa Barbara Street
house was only $45,000.00 at the time of the exchange, the trial court was apparently disturbed by evidence that
William did not report the cancellation of the $30,000.00 debt owed to him by his sister in his tax returns. On
this basis, the trial court disregarded the cancellation of the $30,000.00 debt and concluded that the value of the
Santa Barbara Street house was simply that of the house that William had traded for it, which, by William's
estimate, was $45,000.00.
104 Nev. 342, 346 (1988) Verheyden v. Verheyden
that the 1982 Honda was purchased during the marriage. Clear and certain proof is required
to rebut the presumption that property acquired during marriage is community property.
Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 250 (1980).
Camille testified that when she and William bought the Honda in June of 1982, William
told her it was a gift to her. Camille also stated that the Honda had always been referred to as
her car. Camille explained that William's name appeared on the title with hers only because
she wanted William to have the automobile if something happened to her.
[Headnotes 6, 7]
Nevertheless, the mere oral expression by a spouse that an automobile purchased during
the marriage is a gift to the other spouse does not attain the level of clear and certain proof
necessary to overcome the presumption of community property. See Milisich v. Hillhouse, 48
Nev. 166, 228 P. 307 (1924) (mere naked statement that automobile purchased during
marriage was a gift fails to overcome community property presumption). Similarly, the
opinion of either spouse is of no weight in determining whether property is community or
separate. Bank v. Milisich, 52 Nev. 178, 283 P. 913 (1930). Thus, the trial court's
findingthat the presumption of community property was overcome by clear and certain
proofis unsupported by substantial evidence and must be reversed.
4
See Todkill, 88 Nev.
at 238, 495 P.2d at 633.
The judgment and decree granting respondent Winifred Camille Verheyden a $19,125.00
interest in William's separate property, the residence located at 4861 Santa Barbara Street, is
reversed. The judgment and decree awarding to respondent Winifred Camille Verheyden the
parties' 1982 Honda automobile as a gift from William to Camille is reversed. The case is
remanded to the trial court for entry of a decree in accordance with this reversal.
____________________

4
We also point out that NRS 123.220(1) requires an agreement in writing between the spouses to transmute
community property to the separate property of either spouse. NRS 123.220(1).
____________
104 Nev. 347, 347 (1988) Nevada Emp. Sec. Dept. v. Nacheff
NEVADA EMPLOYMENT SECURITY DEPARTMENT,
Appellant, v. KRASIMIR NACHEFF, Respondent.
No. 18317
July 14, 1988 757 P.2d 787
Appeal from an order reversing administrative decision. Eighth Judicial District Court,
Clark County; Earle W. White, Jr., Judge.
Employee applied for unemployment compensation after termination by employer. Denial
of benefits was upheld by decision of the Board of Review, and employee sought judicial
review. The district court reversed the administrative decision and reinstated employee's
benefits. The Employment Security Department appealed. The Supreme Court held that: (1)
employee's failure to give employer notice or make reasonable attempts to give notice of
absence due to illness was misconduct, and (2) finding of employee's misrepresentation,
rendering him liable for benefits repayment, was supported by substantial evidence that
employee knew reason for separation was not lack of work and misrepresented reason for
separation on benefit application.
Reversed.
Crowell, Susich, Owen & Tackes, Carson City, for Appellant.
Jon L. Sasser, Carson City, and Justin M. Clouser, Las Vegas, for Respondent.
1. Social Security and Public Welfare.
Employee's failure to give employer notice or make reasonable attempts to give notice of absence from
work because of illness on two consecutive days was misconduct rendering employee ineligible for
unemployment benefits. NRS 612.385.
2. Social Security and Public Welfare.
Finding of employee misrepresentation, rendering him liable for repayment of unemployment benefits,
was supported by substantial evidence, indicating that employee knew reason for separation was not lack of
work and misrepresented reason for separation on benefit application, despite claim of limited ability to
read English.
OPINION
Per Curiam:
Krasimir Nacheff was absent from his job as a driver for Las Vegas Ice & Cold Storage for
nine consecutive working days. On July 7, 1986, the first day of his absence, Nacheff
contacted his employer prior to his scheduled work time and left a message that he was not
feeling well and would not come to work.
104 Nev. 347, 348 (1988) Nevada Emp. Sec. Dept. v. Nacheff
he was not feeling well and would not come to work. Nacheff did not contact his employer or
come to work on the following two days.
Nacheff called his employer again on July 10, 1986, but his supervisor was not available.
Nacheff left a message requesting that his supervisor contact him, but did not mention his
illness or absence from work. Nacheff left similar messages on July 11 and 14, but his
employer did not return any of his calls. July 12 and 13 were Nacheff's scheduled days off.
Nacheff neither contacted his employer nor came to work on July 15 and 16. On July 17
Nacheff picked up his paycheck at his employer's office. When he called his supervisor later
that day, Nacheff was told he had been terminated. Nacheff's supervisor did not state a
specific reason for terminating him, and Nacheff did not receive a written notice of
termination.
Nacheff described the illness that caused his absence from work as a lung problem caused
by frequent going into and out of coolers on the job. He did not seek medical attention out of
fear of the expense.
Nacheff applied for unemployment compensation, checking the box marked laid off, lack
of work, as the reason for separation. Nacheff said he knew he had been fired, but explained
that he did not understand English well and did not understand the word discharged on the
application form. Since there was no choice for fired or terminated, he checked the box
marked laid off. English is Nacheff's second language. He was born in Bulgaria, but has
lived in the United States since 1976 and has been an American citizen since 1982. He did
not ask for assistance in filling out the form. Nacheff received one unemployment insurance
payment of $171.00.
After receiving the employer's statement regarding Nacheff's termination, the Nevada
Employment Security Division (ESD) found Nacheff ineligible for benefits and ordered him
to repay the benefits he had already received. The ESD determined that Nacheff had been
terminated from his employment due to industrial misconduct and that he had misrepresented
the reason for his separation on his benefit application. A hearing was held, at which the
employer did not present evidence. The appeals referee upheld the ESD determinations. The
Board of Review declined to review the case, thus affirming the referee's decision.
Nacheff sought judicial review, and on June 11, 1987, the district court entered an order
reversing the administrative decision and reinstating Nacheff's benefits. The court found that
the record lacked substantial evidence to support the determinations of misconduct and
misrepresentation, and that those determinations were therefore arbitrary and capricious. This
appeal followed.
104 Nev. 347, 349 (1988) Nevada Emp. Sec. Dept. v. Nacheff
Under the standard of review for appeals from the ESD, if the factual findings of the
agency are supported by evidence, they are conclusive, and a reviewing court's jurisdiction is
confined to questions of law. NRS 612.530(4). [I]n reviewing the decision of an
administrative agency, the district court is limited to a determination of whether the board
acted arbitrarily or capriciously. Leeson v. Basic Refractories, 101 Nev. 384, 385, 705 P.2d
137, 138 (1985) (citations omitted). [T]he question is whether the board's decision was
based on substantial evidence; neither this court nor the district court may substitute its
judgment for that of the administrative agency. Id. at 385-86, 705 P.2d at 138 (quoting State,
Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984)).
[Headnote 1]
The appeals referee denied Nacheff benefits pursuant to NRS 612.385 because she found
that Nacheff had been discharged for misconduct connected with his work. We have
previously explained that [c]arelessness or negligence on the part of the employee of such a
degree as to show a substantial disregard of the employer's interests or the employee's duties
and obligations to his employer are considered NRS 612.385 misconduct. Barnum v.
Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968) (citing Boynton Cab Co. v. Neubeck,
296 N.W. 636 (Wis. 1941)). [A]n employee is guilty of misconduct if he unreasonably fails
to give his employer notice of his anticipated absence or tardiness. Kraft v. Nev. Emp. Sec.
Dep't, 102 Nev. 191, 194, 717 P.2d 583, 585 (1986) (citations omitted). [I]t is the duty of the
employee to have regard for the interests of his employer and for his own job security, and to
act as a reasonably prudent person would in keeping contact with his employer. . . . Id.
(quoting Doran v. Employment Security Agency, 267 P.2d 628, 630 (Idaho 1954)).
The record shows that Nacheff gave his employer notice of his illness and inability to
come to work on July 7. However, Nacheff did not present himself for work on the following
two days, and did not notify or attempt to notify his employer that he would be absent on
those days. Nacheff's absence from work for two consecutive days, without giving his
employer notice or making reasonable attempts to give notice, clearly constitutes NRS
612.385 misconduct. Having found misconduct in Nacheff's failure to give notice of his July
8 and 9 absences, we need not address Nacheff's contentions that his supervisor's failure to
return his calls or to give him a work schedule relieved Nacheff of the duty to present himself
for work. The record contains substantial evidence of misconduct on Nacheff's part, and the
district court erred in finding otherwise.
104 Nev. 347, 350 (1988) Nevada Emp. Sec. Dept. v. Nacheff
[Headnote 2]
Nacheff was found liable for benefit overpayment pursuant to NRS 612.365 and NRS
612.445. Subsection one of NRS 612.365 provides as follows:
Any person who is overpaid any amount as benefits under this chapter is liable for
the amount overpaid unless:
(a) The overpayment was not due to fraud, misrepresentation or willful
nondisclosure on the part of the recipient; and
(b) The overpayment was received without fault on the part of the recipient, and its
recovery would be against equity and good conscience, as determined by the executive
director.
Under NRS 612.445 a person must repay benefits and is disqualified from receiving benefits
for up to 52 weeks when the ESD executive director finds that he has made a false statement
or representation, knowing it to be false, or knowingly failed to disclose a material fact in
order to obtain or increase any benefit. . . .
The referee found that even if Nacheff did not understand part of the benefit application,
Nacheff knew the reason for his separation was not lack of work and misrepresented the facts
concerning his separation by checking the box marked laid off, lack of work. The referee's
finding of misrepresentation by Nacheff is supported by substantial evidence. The district
court erred in finding that the record lacked evidence of misrepresentation. Since the referee's
decision is supported by evidence, it is conclusive, NRS 612.530(4), and the court may not
substitute its judgment for that of the administrative agency. Leeson, 101 Nev. 384, 386, 705
P.2d 137, 138.
Accordingly, we reverse the order of the district court and reinstate the administrative
decision.
____________
104 Nev. 351, 351 (1988) Clem v. State
JOSEPH CLEM aka CLEM JOSEPH; GERALD BRIDGEWATER; KENNETH
BRIDGEWATER; JAMES PLAYER; and CHARLES COOK, Appellants, v. THE
STATE OF NEVADA, Respondent.
No. 17799
August 25, 1988 760 P.2d 103
Appeal from judgments of conviction upon jury verdicts of guilty of one count each of
first degree kidnapping, extortion, and mayhem, all with a deadly weapon. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Defendants were convicted upon jury verdicts of first degree kidnapping, extortion, and
mayhem all with a deadly weapon before the district court and defendants appealed. The
Supreme Court held that: (1) State was not required to demonstrate kidnapping as separate
offense; (2) peremptory strikes of black jurors were for racially neutral grounds; (3) testimony
of victim's neighbor about victim's excited utterances were admissible at trial; (4)
photographs of victim were admissible; (5) heated electric iron and red hot table fork were
deadly weapons within meaning of enhancement statute; (6) defendant's actions warranted
both robbery and extortion charge; and (7) defendants were not entitled to new trial on new
evidence grounds.
Affirmed.
Morgan D. Harris, Public Defender, Victor John Austin, Deputy Public Defender, Clark
County, for Appellant Joseph Clem.
Mark B. Bailus, Las Vegas, for Appellant Gerald Bridgewater.
Lynn Shoen, Las Vegas, for Appellant Kenneth Bridgewater.
Ward & Maglaras, Las Vegas, for Appellant James Player.
Beury & Schubel, Las Vegas, for Appellant Charles Cook.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Appellants.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Clark County;
for Respondent.
1. Kidnapping.
State was not required to demonstrate that kidnapping occurred as a separate offense following
defendants' extortion of money from victim in her apartment; defendants' physical restraint of
victim, which increased the risk of her harm during extortion by torture, was
sufficient to support defendants' kidnapping convictions.
104 Nev. 351, 352 (1988) Clem v. State
her apartment; defendants' physical restraint of victim, which increased the risk of her harm during
extortion by torture, was sufficient to support defendants' kidnapping convictions. NRS 200.310, subd.
1.
2. Jury.
Prosecution's peremptory challenge of black venireman, because he was young and single, was racially
neutral and did not violate black defendants' Batson rights; prosecution did not want young single men on
jury, and struck white venireman for same reason. U.S.C.A.Const. Amend. 14.
3. Jury.
Removal of venireman for hesitating in making answer to question is not a specific basis to allow
peremptory challenge, even though it is racially neutral. U.S.C.A.Const. Amend. 14.
4. Jury.
Prosecution's peremptory challenges to black veniremen, both of whom had close relatives convicted of a
crime, was facially neutral reason for challenges and did not violate black criminal defendants' Batson
rights, especially where white venireman was struck for same reason. U.S.C.A.Const. Amend. 14.
5. Jury.
Association with criminal justice system is a facially neutral reason to challenge a venireman.
U.S.C.A.Const. Amend. 14.
6. Criminal Law.
Kidnapping, extortion and mayhem victim's hysterical comments, as interpreted by neighbor immediately
following the incident, were admissible in defendants' trial; victim's statements were excited utterances and
neighbor's statements were independently admissible. NRS 51.075, 51.095.
7. Criminal Law.
Photographs of victim following her tortured extortion and kidnapping were admissible in defendants'
trial, even though photographs graphically depicted victim's burns, where photographs were not gruesome
or overly prejudicial.
8. Criminal Law.
Heated electric iron and red hot table fork were deadly weapons within meaning of deadly weapon
enhancement statute where items were used to burn kidnapping and extortion victim and caused her severe
burns. NRS 193.165.
9. Indictment and Information.
Defendants were not entitled to have either robbery or extortion charge dismissed; evidence demonstrated
both a taking of money from victim and a taking of personal property by indirect means; defendants, while
torturing victim following her disposal of their cocaine, took money and food stamps from victim and made
her call friends to acquire more money.
10. Criminal Law.
Evidence which contradicted witness' prior testimony in criminal trial was insufficient to support grant of
new trial on newly discovered evidence grounds, especially where the new evidence, a witness who stated
he was at scene of crime, could no longer be located.
104 Nev. 351, 353 (1988) Clem v. State
OPINION
Per Curiam:
Appellants Joseph Clem, Gerald Bridgewater, Kenneth Bridgewater, James Player and
Charles Cook were convicted of first degree kidnapping, extortion and mayhem for burning
Katherine Sexton with a red-hot table fork and heated electric iron. Appellants raise a number
of challenges to their convictions. We conclude that the convictions were properly entered
and therefore affirm.
Katherine Sexton lived in Las Vegas with her five-year-old daughter, Erica, and her
cousin, appellant Joseph Clem. Clem's friends from Los Angeles, appellants Gerald and
Kenneth Bridgewater, Player and Cook, had been staying at Sexton's apartment and using it
to cook cocaine into rock form, or crack. Appellants had also been selling cocaine from the
apartment.
Sexton did not like the influence of the drugs on Erica so she threw a baggie containing
$1,500 of appellants' cocaine out the window. Two days later, at 4:00 a.m. on January 30,
1986, the Bridgewaters, Player and Cook entered Sexton's apartment and demanded to know
what had happened to their cocaine. Clem joined the men, while Gerald Bridgewater closed
the door to the bedroom where Erica slept. Appellants heated a table fork on the apartment's
electric stove and placed it on Sexton's hand, arm, forehead and stomach. They held a shirt
over Sexton's mouth to muffle her screams.
The men repeatedly demanded $1,500. They made Sexton call several people, including
her friend, Sonja Smith, to obtain the money. Because Sexton was crying, Smith asked if she
needed the police. When Sexton said yes, Smith called the police.
Thereafter, Clem heated an electric iron while the others held Sexton on the sofa. Clem
pressed it against her thigh for three or four seconds, until Sexton could hear her skin sizzle.
Clem then stated he would next burn her face.
The police arrived moments later. Three officers testified that they noticed a haze in the
living room and smelled burnt flesh. The officers found a fork wedged into the electric coils
on the stove and a hot iron. Sexton had second degree burns on her thighs, forehead and
buttocks, some of which showed the shape of the fork's tines, and a four by twenty inch burn
on her thigh from the iron.
At trial, appellants were found guilty of first degree kidnapping, extortion and mayhem, all
with a deadly weapon. Each was sentenced to life with the possibility of parole for
kidnapping, ten years for extortion, and five years for mayhem; and each was given
additional identical consecutive sentences for committing each offense with a deadly
weapon.
104 Nev. 351, 354 (1988) Clem v. State
given additional identical consecutive sentences for committing each offense with a deadly
weapon. Appellants appeal their convictions, raising a number of issues, all of which we have
determined are without merit.
THE KIDNAPPING CHARGES
[Headnote 1]
Appellants contend that because the kidnapping was incidental to the extortion and
mayhem, the State must prove Sexton was moved to establish kidnapping as a separate
offense.
1
Appellants insist that there was no evidence of asportation because Sexton was
seated on her sofa while being threatened and burned. While the plain language of NRS
200.310(1) does not require asportation, the court has required it when the kidnapping is
incidental to another offense, such as robbery, where restraint of the victim is inherent with
the primary offense. See Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978); Langford v.
State, 95 Nev. 631, 600 P.2d 231 (1979). Here, however, appellants physically restrained
Sexton. This, in itself, establishes kidnapping as an additional offense. Moreover, the
kidnapping was not incidental to the extortion because the restraint increased the risk of
harm. Finally, the restraint had an independent purpose and significance as it was essential to
the accomplishment of mayhem.
Appellants also insist that the district court erred in instructing the jury on kidnapping.
Their proffered instruction was not offered to the district court. The failure to offer the
instruction waives the issue on appeal. See McShane v. State, 94 Nev. 669, 584 P.2d 707
(1978). In addition, our review of the instructions shows they included the statutory elements
of kidnapping. There was no error.
PROSECUTORIAL DISCRIMINATION
Appellants contend that their Fourteenth Amendment equal protection rights were violated
by the prosecutor's removal of all black veniremen from the jury. Appellants, citing Batson v.
Kentucky, 476 U.S. 79 (1986), claim that the prosecutor improperly used his peremptory
challenges to remove all three black veniremen, leaving an all-white jury to judge the five
black defendants. Appellants argue that the facially neutral reasons supplied by the
prosecutor as justification for his action were designed to hide racial bias and that the
district court abused its discretion by not entering findings on the issue.
____________________

1
NRS 200.310(1) provides, in pertinent part:
Every person who shall willfully seize, confine, . . . conceal, kidnap or carry away any person by any
means whatsoever with the intent to hold or detain, or who holds or detains, the person . . . for the
purpose of committing sexual assault, extortion or robbery upon or from the person . . . is guilty of
kidnapping in the first degree.
104 Nev. 351, 355 (1988) Clem v. State
supplied by the prosecutor as justification for his action were designed to hide racial bias and
that the district court abused its discretion by not entering findings on the issue.
The State removed three prospective black jurors with peremptory challenges and used its
other five challenges to remove whites. After appellants objected to the prosecutor's use of
the challenges, the prosecutor stated he removed one black juror because he did not want
young, single jurors and had done the same with a similar white juror. The prosecutor stated
that he had challenged the other two blacks because each had a son or stepson convicted of
crimes and felt, as a result, they might be prejudiced against the legal system. The district
court held a recess, during which time the judge reviewed the Batson opinion. Thereafter, the
court ruled that the prosecutor removed the black veniremen for facially neutral reasons, and
denied appellants' motion for a mistrial.
[Headnotes 2, 3]
We conclude that the prosecutor's reasons are facially neutral and do not evidence a racial
bias. The prosecutor peremptorily challenged one black venireman because he was young,
single and hesitated in answering certain questions.
2
This is a viable reason, especially in the
prosecution of other young, single men for drug-related crimes.
3
Although the prosecutor did
not explain why young, single males were not desirable jurors, he did remove both veniremen
of that class. The record supports the district court's finding of no purposeful discrimination.
[Headnotes 4, 5]
The prosecutor challenged two black veniremen because each had a close relative
convicted of a crime. Association with the criminal justice system is a facially neutral reason
to challenge veniremen.
4
The prosecutor also removed one white venireman whose brother
had been convicted of robbery. The prosecutor removed all persons who had relatives
convicted of crimes, and his reasons for doing so were facially neutral and reflective of no
purposeful discrimination violative of the Fourteenth Amendment.
____________________

2
Removal for hesitation is not a specific basis related to the case, though it is facially neutral. As the
prosecutor provided other facially neutral reasons for challenging this juror, and we can discern no hidden racial
bias, we cannot find evidence of purposeful discrimination. See United States v. Forbes, 816 F.2d 1006 (5th Cir.
1987); United States v. Vaccaro, 816 F.2d 443 (9th Cir. 1987), cert. denied, 108 S.Ct. 262 (1988).

3
See Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987); United States v. Clemons, 843 F.2d 741 (3rd Cir.
1988); State v. Castillo, 751 P.2d 983 (Ariz.App. 1987).

4
See Forbes, 816 F.2d at 1010-11; United States v. Williams, 822 F.2d 512 (5th Cir. 1987); Vaccaro, 816
F.2d at 457.
104 Nev. 351, 356 (1988) Clem v. State
In addition, the district court entered sufficient findings on the issue. The trial courts must
make a sincere and reasoned attempt to evaluate the prosecutor's explanation, and reject
race-neutral explanations that are not bona fide and unrelated to the facts of each specific
case. See Ward v. State 733 S.W.2d 728 (Ark. 1987); Slappy v. State, 503 So.2d 350
(Fla.App. 1987), aff'd, 522 So.2d 18 (Fla. 1988), cert. denied, 108 S.Ct. 2873. The district
court recessed to consider the matter in the light of a contemporaneous review of Batson.
Although a more thorough explanation of the court's decision could have been placed in the
record, the record indicates the district court carefully considered the matter. The district
court's decision is discretionary. See Batson, 476 U.S. at 98 n.21 (a reviewing court
ordinarily should give these findings great deference.). The district court has not abused its
discretion.
APPELLANTS' REMAINING CLAIMS
[Headnote 6]
Appellants contend that the district court should have stricken comments made by one of
Sexton's neighbors purporting to interpret Sexton's hysterical statements soon after she was
attacked. Sexton's statements are excited utterances. See NRS 51.095. The neighbor's
statements are independently admissible as there is no evidence that the woman would not be
speaking the truth in a moment of crisis. See NRS 51.075. Further, Sexton later corroborated
the statements in her testimony, which supports the declarant's credibility. See Lopez v. State,
631 P.2d 420 (Wash.App. 1981).
[Headnote 7]
Appellants also argue that the district court erred by admitting, over objection,
photographs of Sexton's injuries. We have reviewed the photographs and although they
graphically depict Sexton's burns, they are not gruesome or unduly prejudicial. See Milligan
v. State, 101 Nev. 627, 708 P.2d 289 (1985), cert. denied, 107 S.Ct. 238 (1986); Dearman v.
State, 93 Nev. 364, 566 P.2d 407 (1977).
[Headnote 8]
Appellants next contend that the enhancements for using a deadly weapon were
improperly entered because simple household items cannot be deadly weapons without
proof that they are capable of inflicting death.
5
This court has not previously defined what
instruments are properly included in the category of "deadly weapons."
____________________

5
NRS 193.165 provides:
1. Any person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to an in addition to the term of
imprisonment prescribed by statute for each crime.
104 Nev. 351, 357 (1988) Clem v. State
what instruments are properly included in the category of deadly weapons. Other states
have generally resolved the definitional problem by resorting to a functional test of how an
instrument is used and the facts and circumstances of its use.
6
We hereby adopt the same test
for determining whether an instrument is within the category of a deadly weapon. A heated
electric iron and red hot table fork can cause serious bodily injury or death. Sexton's burns
evidence that injury. The appellants' intent to injure and disfigure with the iron and the fork
was clearly illustrated at trial. Appellants' sentences were properly enhanced as these
instruments were used as deadly weapons.
[Headnote 9]
Appellants also contend that the district court erred by denying their petitions for writs of
habeas corpus, which sought dismissal of either the robbery or the extortion charge. Robbery
and extortion are different crimes, one the taking of personal property by direct means and the
other the taking of personal property by indirect means. See Eckert v. Sheriff, 92 Nev. 719,
557 P.2d 1150 (1976). The facts clearly show the basis for two offenses: extortion by forcing
Sexton to call her friends to obtain money, and robbery by taking Sexton's food stamps and
money from her pocket. The district court did not err in denying appellants' petitions for writs
of habeas corpus.
[Headnote 10]
Appellants contend the district court erred by denying their motion for a new trial based on
newly-discovered evidence. The district court found that the new evidence would probably
not lead to a different result on retrial. We agree with the district court decision. The evidence
contradicts a witness' prior testimony, which is not, in the instant case, grounds for a new
trial. See Oliver v. State, 85 Nev. 418, 456 P.2d 431 (1969). Further, the new sixth man,
who was purportedly at the scene of the crime, cannot now be found. In any event, the district
court did not abuse its discretion in denying the new trial motion. See Young v. State, 103
Nev. 233, 737 P.2d 512 (1987); Lightford v. State, 91 Nev. 482, 538 P.2d 585 (1975).
Appellants next urge reversal based upon the claims that a variety of the prosecutor's
statements and actions denied them a fair trial. We have reviewed the four contentions and
they are without merit.
____________________

6
See State v. Bustamone, 593 P.2d 912 (Ariz.App. 1978); People v. Moran, 109 Cal.Rptr. 287
(Cal.Dist.Ct.App. 1973); People v. Grubb, 408 P.2d 100 (Cal. 1965); People v. Cordero, 206 P.2d 665
(Cal.Dist.Ct.App. 1949); Wynn v. United States, 538 A.2d 1139 (D.C.App. 1988); People v. Van, 483 N.E.2d
666 (Ill.App. 1985); People v. Spagnola, 260 N.E.2d 20 (Ill.App. 1970), cert. denied, 402 U.S. 911 (1971);
People v. Dwyer, 155 N.E. 316 (Ill. 1927); Cummings v. State, 384 N.E.2d 605 (Ind.App. 1979).
104 Nev. 351, 358 (1988) Clem v. State
without merit. None of the statements rise to the level of prejudicial error in light of the
overwhelming evidence of appellants' guilt. See Flanagan v. State, 104 Nev. 105, 754 P.2d
836 (1988).
There is also no merit in the contention that the prosecutor failed to present exculpatory
evidence to the grand jury. NRS 172.145(2) requires the district attorney to submit any
evidence which will explain away the charge. See Sheriff v. Frank, 103 Nev. 160, 734 P.2d
1241 (1987). Sexton testified to the disputed facts and the grand jury questioned Sexton on
the point. The prosecutor did not divert the grand jury from the evidence. The district court
appropriately found that the grand jury received a fair presentation of the facts and denied
appellants' writs of habeas corpus.
Finally, appellants contend that the indictment failed to charge appellants as aiders and
abettors. The indictment names appellants as aiders and abettors in several ways. The jury
instructions reiterate the indictment's recitations. Appellants had notice of the State's
intentions to charge them as aiders and abettors and received a fair trial.
For the foregoing reasons we affirm appellants' convictions and sentences.
____________
104 Nev. 358, 358 (1988) Pope v. Gray
EVA LYNN POPE and WILLIAM WALTON MAGILL, Appellants, v. BRUCE GRAY,
M.D., and WILLIAM H. THOMAS, M.D., Respondents.
No. 18117
August 25, 1988 760 P.2d 763
Appeal from an NRCP 41(b) dismissal. First Judicial District Court, Carson City; Michael
E. Fondi, Judge.
Daughter and son brought wrongful death action against doctors alleging mother's death
was result of medical malpractice. Defendants moved to dismiss on ground action was
untimely. The district court granted motion, and appeal was taken. The Supreme Court held
that: (1) two-year statutory period for wrongful death medical malpractice actions does not
begin to run until plaintiff discovers or reasonably should have discovered legal injury, that
is, both fact of death and negligent cause thereof; (2) doctors' statement to patient's daughter,
on day of patient's death, that they did not know why patient died, given patient's age, surgical
treatment, and serious manifestation of poor health two days before her death, was
insufficient to suggest to reasonably prudent person that patient succumbed to effects of
medical malpractice so as to commence statute of limitations; and {3) although autopsy
report specifying acute gastrojejunitis as cause of death was apparently placed with
patient's medical reports within month after death, and was available for daughter's
examination, daughter advanced at least a reasonable argument that she should not have
been expected to suspect malpractice until more than three months later when she
received mother's death certificate and thus, action should not have been decided on
motion to dismiss on grounds of untimeliness.
104 Nev. 358, 359 (1988) Pope v. Gray
before her death, was insufficient to suggest to reasonably prudent person that patient
succumbed to effects of medical malpractice so as to commence statute of limitations; and (3)
although autopsy report specifying acute gastrojejunitis as cause of death was apparently
placed with patient's medical reports within month after death, and was available for
daughter's examination, daughter advanced at least a reasonable argument that she should not
have been expected to suspect malpractice until more than three months later when she
received mother's death certificate and thus, action should not have been decided on motion
to dismiss on grounds of untimeliness.
Reversed and remanded.
Carl F. Martillaro and Paul Sherman, Carson City, for Appellants.
Joseph Van Walraven, Echeverria, Osborne & Jenkins, and Cathy L. Bradford, Reno, for
Respondents.
1. Death.
Two-year statutory period for wrongful death medical malpractice actions does not begin to run until
plaintiff discovers or reasonably should have discovered legal injury, that is, both fact of death and
negligent cause thereof. NRS 41A.097.
2. Death.
Doctors' statement to patient's daughter, on day of patient's death, that they did not know why patient
died, given patient's age, surgical treatment, and serious manifestation of poor health two days before her
death, was insufficient to suggest to reasonably prudent person that patient succumbed to effects of medical
malpractice so as to commence statute of limitations on wrongful death action.
3. Limitation of Actions.
Although autopsy report specifying acute gastrojejunitis as cause of death was apparently placed with
patient's medical reports within month after death, and was available for daughter's examination, daughter
advanced at least a reasonable argument that she should not have been expected to suspect malpractice
until more than three months later when she received mother's death certificate; thus, medical malpractice
action should not have been decided on motion to dismiss on grounds of untimeliness. NRCP 41(b);
NRS 41A.097.
OPINION
Per Curiam:
This is an appeal from a dismissal granted pursuant to NRCP 41(b) at the conclusion of
plaintiffs' case in an action for wrongful death allegedly resulting from medical malpractice.
The trial judge held that the action was timebarred by the applicable statute of
limitations, NRS 41A.097.
104 Nev. 358, 360 (1988) Pope v. Gray
judge held that the action was timebarred by the applicable statute of limitations, NRS
41A.097. We disagree, reverse and remand.
The Facts
On May 8, 1982, Eva Magill, seventy-four, vomited a bloody fluid and was taken by her
daughter, Eva Lynn Pope, to the Carson-Tahoe Hospital. The next day respondent Dr.
Thomas performed tests on Magill to diagnose her problem. Later that day, he and
co-respondent Dr. Gray performed surgery on Magill for a lower bowel obstruction. On May
10, a third physician, Dr. Baggett, performed a Swanz Ganz
1
on Magill, who died during or
shortly after the procedure. One of the three doctors told Pope that her mother had died and
they were not sure why.
On May 11, an autopsy was performed. The autopsy report was apparently filed with
Magill's medical records on June 2, 1982. It indicated that the cause of death was coronary
heart disease and acute gastrojejunitis. The death certificate, which previously stated that the
cause of death would be filled in later, was modified on September 13, 1982 to reflect
gastrojejunitis as the cause of death. Pope apparently received a copy of the death certificate
around September 17, 1982. On September 11, 1984, Pope and her brother, William Walton
Magill, filed a wrongful death action, alleging that respondents' medical malpractice cost
them their mother's companionship.
At trial, after presentation of plaintiffs' evidence,
2
Gray and Thomas moved for dismissal
under NRCP 41(b), arguing that the NRS 41A.097 two-year period of limitations had run
before plaintiffs commenced their action. The physicians, citing Gilloon v. Humana, Inc., 100
Nev. 518, 687 P.2d 80 (1984), maintained that the statute began running on May 10, 1982,
when Mrs. Magill died. The district court granted the motion, basing its decision in large
measure on our holding in Gilloon.
Discussion
[Headnote 1]
The issue before us is whether Pope's
3
action was barred by the statute of limitations.
NRS 41A.097 provides: 1.
____________________

1
This is apparently a procedure where a catheter is inserted into a pulmonary artery. T. Stedman, Stedman's
Medical Dictionary 237 (1982).

2
Pope argued at trial that Magill's death was caused by sepsis, and that respondents had misdiagnosed this
problem. Gray and Thomas were prepared to argue that there was no misdiagnosis, and that Magill died of a
heart attack, but the action was dismissed before they presented their evidence.

3
Hereafter, appellants Pope and Magill will be collectively referred to as Pope; respondents Gray and
Thomas will be referred to as Gray.
104 Nev. 358, 361 (1988) Pope v. Gray
1. Except as provided in subsection 2,
4
an action for injury or death against a
provider of health care shall not be commenced more than . . . two years after the
plaintiff discovers or through the use of reasonable diligence should have discovered
the injury, for:
(a) Injury to or wrongful death of a person, based upon alleged professional
negligence of the provider of health care.
5

Gray argues that, in wrongful death actions, the two-year statute of limitations begins to run
upon death; Pope contends that it commences running only when the decedent dies and the
person bringing the wrongful death action suspects or reasonably should suspect that
malpractice was the cause. The basic question is whether the discovery rule applied to
medical malpractice personal injury actions in Massey v. Litton, 99 Nev. 723, 669 P.2d 248
(1983), also applies to medical malpractice wrongful death actions by heirs. We conclude, in
accordance with our decision in Massey, that it does.
In Massey, the injured plaintiff lost the use of her foot after an operation. Several years
later, she sued Litton for malpractice. Litton argued that NRS 41A.097 barred the action
because it was filed more than two years after Massey discovered the physical harm, loss of
foot control. However, Massey countered that she did not discover proof of Litton's
negligence until well after she discovered the physical harm, and that the statute's two-year
provision should not actuate until the victim discovers both the injury and the facts
suggesting negligence.
In deciding Massey, we considered whether the two-year statute, which begins running
upon discovery of the injury, should be interpreted as commencing (1) when the physician
performed the allegedly negligent operation; (2) when the patient discovered, or should have
discovered, the physical harm; or (3) when the patient discovered, or should have discovered,
that he or she suffered physical harm and that it resulted from the health care provider's
negligence. In choosing the third option, we reasoned that the term injury, as used by NRS
41A.097, meant legal injury, which encompasses not only the physical damage but also
the negligence causing the damage. Massey, 99 Nev. at 726, 669 P.2d at 250.
____________________

4
Subsection 2 provides: This time limitation is tolled for any period during which the provider of health care
has concealed any act, error or omission upon which such action is based and which is known or through the use
of reasonable diligence should have been known to him. No evidence of concealment was presented in this
case.

5
In 1985, after Pope brought her action, NRS 41A.097 was modified. However, the changes do not affect the
statutory language involved in this appeal.
104 Nev. 358, 362 (1988) Pope v. Gray
726, 669 P.2d at 250. We concluded that an interpretation providing that the statutory period
commenced to run only when a plaintiff discovers or should have discovered legal injury
would be the most equitable construction of NRS 41A.097. Our ruling was in accord with the
rule in many other jurisdictions. See Restatement (Second) of Torts 899 comment e (1979).
We see no reason why the rule in Massey should not also apply, under the statute, to
wrongful death actions for medical malpractice. Accordingly, we conclude that the two-year
statutory period for wrongful death medical malpractice actions does not begin to run until
the plaintiff discovers or reasonably should have discovered the legal injury, i.e., both the fact
of death and the negligent cause thereof.
Respondent argues, however, that in Gilloon, 100 Nev. 518, 687 P.2d 80, we considered
and rejected the idea that the discovery rule applies to wrongful death actions. In Gilloon,
decedent's daughter filed a wrongful death action in 1981, both as an heir and as a personal
representative, alleging that a physician's malpractice in 1976 caused her mother's death in
1979. The district court dismissed the action on summary judgment, reasoning that under
NRS 41A.097, the injury occurred in 1976, when the doctor allegedly committed malpractice
on the mother, and therefore the two-year limitation barred the daughter's action. We
reversed, holding in an action for wrongful death, the injury contemplated by NRS 41A.097
is the death of the malpractice victim and the two-year period of limitation begins to run from
the time of death or the discovery thereof. 100 Nev. at 519-20, 689 P.2d at 81. Gray argues
that this statement was a ruling that in wrongful death actions, the statutory period always
actuates at the time of death.
However, an examination of Gilloon in its entirety reveals the flaw in Gray's
characterization of our holding. In Gilloon, the decedent allegedly received negligent
treatment in 1976 that led to her death in 1979. The hospital argued that, for purposes of NRS
41A.097, the injury triggering the statute was the alleged negligent treatment that occurred in
1976. The hospital maintained that because Gilloon did not bring her action until after her
mother died in 1979, the action was barred by the two-year statute of limitations. We
disagreed with this reasoning, noting that the hospital's construction could bar potential
plaintiffs from court before they had ever had a chance to bring suit. Gilloon, 100 Nev. at
521, 687 P.2d at 82. Moreover, in Gilloon, we cited with approval the definition of injury
adopted in Massey and suggested that we intended it to apply in wrongful death cases:
Our construction is also consistent with our reasoning in Massey v. Litton, 99 Nev.
723, 669 P.2d 248 (1983), in which we held that in an action for malpractice the term
"injury" in NRS 41A.097 means legal injury, i.e., the essential elements of a cause of
action, and does not refer merely to the physical harm.
104 Nev. 358, 363 (1988) Pope v. Gray
which we held that in an action for malpractice the term injury in NRS 41A.097
means legal injury, i.e., the essential elements of a cause of action, and does not refer
merely to the physical harm. The death of the decedent being an essential element of
the cause of action for wrongful death, there can be no legal injury until the death has
occurred.
Id. Notwithstanding this language in Gilloon, Gray argues that our holding adopted a
construction of NRS 41A.097 in which knowledge of mere physical harm, death, triggers the
statute of limitations. However, such a construction would be inconsistent with the rationale
of both Gilloon and Massey, in which we held that legal injury, and not mere physical injury,
triggers the 41A.097 statute of limitations.
6

Although logical consistency with our earlier decisions is important, there are other cogent
reasons for applying the discovery rule to wrongful death actions. For example, if we held
that death automatically triggers the period of limitations, such a holding could destroy a right
of action even before an aggrieved person learns of the existence of the right. A corollary
problem would also be created: to avoid a loss of a potentially meritorious claim, plaintiffs'
attorneys may precipitously file premature actions, or even actions that later turn out to be
frivolous, in order to avoid the risk of having a meritorious action barred by NRS 41A.097.
However, as we noted in Massey:
[W]hen injuries are suffered that have been caused by an unknown act of negligence by
an expert, the law ought not to be construed to destroy a right of action before a person
even becomes aware of the existence of that right.
Furthermore, to adopt a construction that encourages a person who experiences an
injury, dysfunction or ailment, and has no knowledge of its cause, to file a lawsuit
against a health care provider to prevent a statute of limitations from running is not
consistent with the unarguably sound proposition that unfounded claims should be
strongly discouraged.
____________________

6
In essence, what we were saying in Gilloon was that the very earliest that the statute of limitations could
begin to run for a wrongful death action would be at death, and not before. This is evidenced by our statement
The death of the decedent being an essential element of the cause of action for wrongful death, there can be no
legal injury until the death has occurred. Gilloon, 100 Nev. at 521, 687 P.2d at 82 (emphasis added). In
Gilloon, because the plaintiff discovered the negligence before death occurred, death was the final element
necessary to trigger the two-year statute of limitations. However, in the immediate case, the discovery of alleged
negligence may not have occurred until after death, and accordingly, death was not necessarily the event which
triggered the two-year statute of limitations, as it was in Gilloon.
104 Nev. 358, 364 (1988) Pope v. Gray
99 Nev. at 727, 669 P.2d at 251 (quoting Foil v. Ballinger, 601 P.2d 144, 147-48 (Utah
1979)).
Moreover, applying the discovery rule to personal injury actions, but not wrongful death
actions, is incongruous and difficult to justify. In Fure v. Sherman Hospital, 380 N.E.2d 1376
(Ill.App.Ct. 1978), after considering defendant's argument that the discovery rule should be
limited to medical malpractice personal injury actions, the court stated it [is] rather difficult
to maintain [a] severe legal distinction which allows the law to give more protection to the
wounding of a man than to the ultimate disaster of his death. Id. at 1384. In Hanebuth v. Bell
Helicopter Int'l, 694 P.2d 143 (Alaska 1984), the Alaska Supreme Court agreed with this
reasoning: if the discovery rule is not applied to wrongful death actions, a tortfeasor whose
conduct has been so grievous as to cause death [might] be exonerated, while another
tortfeasor, guilty of the same conduct except for the fortuity that it merely caused injury,
would be held responsible. Id. at 147.
Other courts have concluded that the discovery rule applies to wrongful death actions,
including those for medical malpractice. E.g. Hanebuth, 694 P.2d 143; Fure, 380 N.E.2d
1376; Shaughnessy v. Spray, 637 P.2d 182 (Ore.Ct.App. 1981); cf. In re Swine Flu Prods.
Liab. Litig., 764 F.2d 637 (9th Cir. 1985) (in Ninth Circuit, discovery rule applies to medical
malpractice wrongful death action under Federal Tort Claims Act
7
); Myers v. McDonald,
635 P.2d 84 (Utah 1981) (statute tolled until plaintiff learned or reasonably should have
learned of decedent's death); White v. Johns-Manville Corp., 693 P.2d 687 (Wash. 1985)
(discovery rule applied to action for wrongful death caused by latent disease).
8
Finally, we
do not believe that the policy considerations behind the statute of limitations would be
thwarted by applying the discovery rule to medical malpractice wrongful death actions.
____________________

7
The court noted that the federal circuits were split on the issue of whether the discovery rule applied to
medical malpractice wrongful death actions. 764 F.2d at 639.

8
We are aware, as respondents argue, that other courts have refused to extend the discovery rule to wrongful
death actions. E.g. Gonzales v. Denver & Rio Grande W. R.R. Co., 686 P.2d 1362 (Colo.Ct.App. 1984);
Greenock v. Rush Presbyterian St. Luke's Medical Center, 382 N.E.2d 321 (Ill.App.Ct. 1978); Clark v.
Prakalapakorn, 648 P.2d 278 (KansasCt.App. 1982); Trimper v. Porter-Hayden, 501 A.2d 446 (Md. 1982);
Presslaff v. Robins, 403 A.2d 939 (N.J.Super.Ct.App.Div. 1979); Morano v. St. Francis Hospital, 420 N.Y.S.2d
92 (App.Div. 1979); Hubbard v. Libi, 229 N.W.2d 82 (N.D. 1975); Pastierik v. Duquesne Light Co., 526 A.2d
323 (Pa. 1987). However, these courts were often interpreting statutes, unlike ours, which expressly state that the
cause of action commences upon death. E.g. Greenock, 382 N.E.2d at 323; Trimpler, 501 A.2d at 448; Presslaff,
403 A.2d at 940; Morano, 420 N.Y.S.2d at 94; Hubbard, 229 N.W.2d at 84. Accordingly, courts in these
jurisdictions have concluded that their statute leaves no room for judicial adoption of some form of discovery
rule. Trimper, 501 A.2d at 449. Our legislature has not so worded NRS 41A.097,
104 Nev. 358, 365 (1988) Pope v. Gray
Finally, we do not believe that the policy considerations behind the statute of limitations
would be thwarted by applying the discovery rule to medical malpractice wrongful death
actions. The United States Supreme Court has noted that statutes of limitations are designed
to promote justice by preventing surprises through the revival of claims that have been
allowed to slumber until evidence has been lost, memories have faded, and witnesses have
disappeared. Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342,
348-49 (1944). However, the discovery rule does not operate to save those who have slept on
their rights. And, in the instant case, respondents have not demonstrated that they suffered
prejudice because appellants brought their action two years and four months following death.
Gray argues that even if the discovery rule applies to wrongful death actions, Pope's action
is barred because she should have discovered facts suggesting the alleged malpractice at least
two years before she filed the action. More specifically, Gray argues Pope should have been
alerted to possible malpractice when the doctors informed her that they were not certain of the
cause of death, or, at the very latest, on June 2, 1982,when the autopsy report listing acute
gastrojejunitis as the cause of death was filed. The district court agreed, ruling that her
September 11, 1984 filing was not timely.
9
In doing so, the court erred.
____________________
and therefore, we believe that the application of the discovery rule to wrongful death cases produces the most
equitable result.
Gray cites Larcher v. Wanless, 557 P.2d 507 (Cal. 1976), to support his contention that the majority view in
this country is that the discovery rule does not apply to wrongful death malpractice actions. We do not agree
that Larcher supports this assertion. The court in Larcher concluded, as we conclude, that in a wrongful death
action, injury, as used in California's wrongful death statute of limitations, refers to the death, with its
allegedly wrongful cause, which gives rise to the lawsuit. 557 P.2d at 509. The court in Larcher went on to
conclude that the plaintiff, in that situation, did have only one year from death to bring her wrongful death
action. However, in Larcher, the plaintiff was aware, before death, of the possible negligence that caused
decedent's death. 557 P.2d at 509. Accordingly, as in Gilloon, 100 Nev. 518, 687 P.2d 80, the cause of action
accrued at the happening of the last event necessary to complete the cause of action, or at death.
We do not agree, as Gray contends, that Larcher stands for the proposition that in California, which has a
statute similar to ours, the statute of limitations for malpractice wrongful death actions begins to run at death. In
fact, given Larcher's definition of injury and reasoning, it appears that California also applies the discovery rule
to wrongful death malpractice actions.

9
The district court stated:
[O]ne of the key pieces of testimony that I apply in my ruling is the testimony of Mrs. Pope, that the
doctors came out and said, we don't know why she died, to me that is the red flag that went up if, in fact
there was a cause of action, that it probably occurred right at that time. Certainly not later than June 1982.
104 Nev. 358, 366 (1988) Pope v. Gray
[Headnote 2]
Before granting an NRCP 41(b) motion, a district court should view the evidence in a light
most favorable to the opposing party. Adelman v. Arthur, 83 Nev. 436, 433 P.2d 841 (1967).
The evidence, when so viewed, does not necessarily suggest that Pope should have suspected
malpractice before September 11, 1982. Pope's mother died suddenly, after no apparent
long-standing illness. Even though the doctors told Pope, on the day of her mother's death,
that they did not know why she died, given Magill's age, surgical treatment, and serious
manifestation of poor health two days before her death, death alone would not necessarily
suggest, to a reasonably prudent person, that the decedent succumbed to the effects of
medical malpractice.
[Headnote 3]
Although the autopsy report specifying acute gastrojejunitis as the cause of death was
apparently placed with Magill's medical records on June 2, 1986,
10
available for Pope's
examination, Pope advanced at least a reasonable argument that she should not have been
expected to suspect malpractice until September 17, 1982, when she received her mother's
death certificate. Given the standard of review for 41(b) motions, requiring the facts to be
viewed in a light most favorable to the non-moving party, we conclude it was error to decide
this factual issue on motion.
Accordingly, having considered the arguments of the parties, we hereby reverse and
remand for a new trial.
____________________

10
Gray argues that Pope admitted receiving the autopsy report on June 2, 1982. At trial, the judge posed the
following question: One of the things that concerns me is when the autopsy report was completed. Counsel have
any stipulation as to the particular fact? Counsel for both parties discussed the question, and finally, Gray's
counsel made the following statement: Apparently the autopsy was conducted on May 11, 1982. The final
report down here is June 2, 1982. Pope's counsel indicated that he did not disagree with those dates.
Gray has, on appeal, apparently interpreted his undisputed statement to the judge The final report down here
is June 2, 1982 as an admission by Pope that she actually received the records on June 2, 1982. However, after
examination of the record, we do not believe that this statement necessarily constituted such an admission.
Although the exact meaning of counsel's statement The final report down here is June 2, 1982 is not totally
clear, it could have, and quite possibly did mean, that the report was placed with Magill's hospital records on
June 2; the statement does not imply that the autopsy report was, at that time, sent to Pope. Obviously, the fact
that the report was placed with the records June 2 does not necessarily mean Pope received them on that day,
or reasonably should have examined them on that day.
____________
104 Nev. 367, 367 (1988) Bostic v. State
JAMES ALLEN BOSTIC, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17551
August 25, 1988 760 P.2d 1241
Appeal from judgment of conviction for causing the death of another by driving a vehicle
while intoxicated. Third Judicial District Court, Churchill County; Mario G. Recanzone,
Judge.
Defendant was convicted of causing death of another by driving while intoxicated by the
district court and defendant appealed. The Supreme Court held that: (1) defendant was not
entitled to jury instruction regarding elements of superseding-intervening cause; (2)
photographs of victim's body were properly admitted; and (3) testimony by witnesses that
defendant was seen speeding on roadway prior to unobserved accident was properly admitted
to show requisite mental state for reckless driving, willful or wanton disregard of safety of
other persons or property of others.
Affirmed.
Terri Steik Roeser, State Public Defender, and Michael K. Powell, Chief Appellate Deputy
Public Defender, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Kevin Pasquale, District Attorney, and
Robert V. Bogan, Deputy District Attorney, Churchill County, for Respondent.
1. Automobiles.
In order to obtain conviction for causing death of another by driving while intoxicated, State need not
demonstrate that defendant was under influence to degree which rendered him incapable of safely driving
or exercising actual physical control of vehicle if State demonstrates that defendant had .10 percent or more
by weight of alcohol in his blood. NRS 484.3795(1).
2. Criminal Law.
Upon request, accused has right to jury instruction on its theory of case, and failure to so instruct jury is
reversible error.
3. Criminal Law.
Intervening act will supersede original culpable act where intervening act is unforeseeable, independent,
non-concurrent cause of injury; intervening cause must effectively break chain of causation in order to
constitute defense to criminal act.
4. Automobiles.
Defendant was not entitled to jury instruction on superseding-intervening cause in trial for causing death
of another by driving while intoxicated and reckless driving resulting in death, based on allegedly
obstructed stop sign; traffic control device did not independently cause deaths of victims.
104 Nev. 367, 368 (1988) Bostic v. State
5. Criminal Law.
District court did not abuse its discretion in admitting photographs of body of automobile accident victim
in trial of defendant for causing death of another by driving while intoxicated and reckless driving resulting
in death; it was not suggested that photographs were inaccurate nor were they grotesque.
6. Criminal Law.
Evidence of uncharged misconduct may be admitted to show intent, knowledge or absence of mistake or
accident. NRS 48.045, subd. 2.
7. Criminal Law.
Testimony of witnesses to effect that defendant's vehicle was speeding prior to unobserved fatal collision
was properly admitted in trial of defendant for driving while intoxicated and reckless driving resulting in
death; evidence was admissible to show requisite mental state for reckless driving, willful or wanton
disregard of safety of other persons or property of others.
8. Witnesses.
Testimony of rebuttal witnesses to effect that defendant was seen speeding on roadway prior to accident
was properly admitted in trial of defendant for causing death of another by driving while intoxicated and
reckless driving resulting in death for purpose of contradicting defendant's testimony that he had never
before been on road.
9. Criminal Law.
District court's comments on graininess and problems with telescopic results in photographs of
intersection of fatal accident did not constitute disparagement of evidence to jury but rather accurately
stated testimony of witness through whom photographs were introduced.
OPINION
Per Curiam:
James Allen Bostic was involved in an automobile accident on June 15, 1985, at
approximately 7:00 p.m. Bostic's blood alcohol level was over .13 percent at the time of the
accident. He was traveling at a speed well in excess of the posted limit on Bottom Road near
Fallon. Failing to heed the posted stop sign at the intersection of Bottom and McLean Roads,
he collided with a Chevrolet Blazer driven by Frank Bianchi. Lou Smith was a passenger in
Bianchi's Blazer. As a result of the collision, Bianchi's vehicle was slammed into the canal
which runs parallel to Bottom Road. The vehicle came to rest on the driver's side, completely
submerged. Through heroic efforts, people at the scene were able to dive into the canal and
free Lou Smith; nevertheless, she died approximately one month later as a result of injuries
sustained in the collision. Frank Bianchi was pinned in the vehicle and drowned before the
tow truck arrived at the scene to drag the vehicle from the canal. James Bostic was charged
with, among other things, causing the death of another by driving while intoxicated and
reckless driving resulting in death. On May 30, 19S6, Bostic was convicted by a jury of two
counts of causing the death of another by driving while intoxicated and was sentenced to
two consecutive terms of six years imprisonment, the maximum sentence under the 19S3
version of the statute under which he was tried.
104 Nev. 367, 369 (1988) Bostic v. State
30, 1986, Bostic was convicted by a jury of two counts of causing the death of another by
driving while intoxicated and was sentenced to two consecutive terms of six years
imprisonment, the maximum sentence under the 1983 version of the statute under which he
was tried.
[Headnote 1]
Bostic contends that NRS 484.3795(1) requires not only that the accused be under the
influence but that he must be under the influence to a degree which renders him incapable of
safely driving or exercising actual physical control of a vehicle. . . . NRS 484.3795(1). In
Cotter v. State, 103 Nev. 303, 738 P.2d 506 (1987), we dealt with a similar contention. Cotter
was convicted of driving while under the influence of a controlled substance (not alcohol),
and causing substantial bodily harm. Cotter argued that the district court had misinstructed
the jury by failing to instruct them on all elements of the crime, i.e. that one must be under the
influence to a degree which renders him incapable of safely driving or exercising actual
physical control of a vehicle. NRS 484.3795(1). We agreed and reversed for a new trial. In
so holding, we stated:
Whether a driver has been so influenced by the ingested substance will, with one
exception [n.2], always be a question of fact, to be considered in the light of such
variable circumstances as the individual's resistance to the substance, the amount
ingested and the type and time of ingestion.
In footnote 2 of our opinion we stated:
We note that the Legislature has included a per se violation of driving under the
influence of intoxicating liquor when persons have 0.10 percent or more by weight of
alcohol in their blood. Our ruling, of course, has no effect on that provision.
Cotter, 103 Nev. at 306 n.2, 738 P.2d at 508 n.2, (Emphasis added.) In this case we have that
per se violation. Therefore, we perceive no error.
Bostic next contends that the district court erred in failing to give an instruction on his
theory of defense. As Bostic contends, the essential question under NRS 484.3795(1) is
whether or not the neglect of a duty was the proximate cause of the fatalities. Bostic argues
that a defendant has the right to have the jury instructed on his theory of the case. Bostic's
theory was that misplacement or reduced visibility of the stop sign, which he failed to heed,
should relieve him of liability. He contends that this theory should have been presented to the
jury via an instruction on superseding-intervening cause.
104 Nev. 367, 370 (1988) Bostic v. State
[Headnotes 2, 3]
Bostic's argument is without merit. Upon request, an accused has the right to a jury
instruction on his theory of the case, and failure to so instruct the jury is reversible error.
Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983). In Konig v. N.-C.-O. Ry., 36
Nev. 181, 212-215, 135 P. 141, 152-153 (1913), the court discussed the elements of a
superseding-intervening cause. An intervening act will supersede the original culpable act
where the intervening act is an unforeseeable, independent, non-concurrent cause of the
injury; the intervening cause must, effectively, break the chain of causation.
[Headnote 4]
In the instant case, the traffic control device did not independently cause the deaths of
Bianchi and Smith. It appears that Bostic's theory of defense was that the actual proximate
cause of the accident was the placement of the stop sign, and that his act, in failing to stop,
was a dependent, intervening cause in the chain of causation. The jury was given several
instructions relating to proximate cause, and instruction No. 21 was specifically tailored to
Bostic's theory.
1
As Bostic's theory of defense was presented to the jury and an instruction
on superseding-intervening cause would have been incorrect, we find no error in the
instructions given.
[Headnote 5]
Bostic raises as his next assignment of error the admission of photographs showing the
scene of the accident, including the body of Frank Bianchi which was pinned within the
vehicle. Admissibility of photographs is within the discretion of the district court and will not
be disturbed on appeal absent a showing of an abuse of discretion. Turpen v. State, 94 Nev.
576, 583 P.2d 1083 (1978); Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977). It has not
been suggested that these photographs are in any way inaccurate, nor do the photographs
show such grotesque injuries as are likely to inflame the passions of the jury. Accordingly, we
hold that the district court did not abuse its discretion.
Bostic next contends that the district court erred in admitting the testimony of four
witnesses concerning prior uncharged misconduct. First, Bostic contends the testimony of
Mrs. Rose and Mr. Halsey, both of whom testified in the State's case-in-chief, was improperly
admitted. Mr. Halsey was a search and rescue swimmer and crewman based at the Fallon
Naval Air Station. At about 7:00 p.m.,
____________________

1
Instruction No. 21 stated: When a person commits an act or makes an omission through misfortune or by
accident under circumstances that show no evil purpose, intention or culpable negligence, he does not thereby
commit a crime.
104 Nev. 367, 371 (1988) Bostic v. State
about 7:00 p.m., June 15, 1985, Mr. Halsey was sitting near the canal next to Bottom Road.
Halsey heard Bostic's truck and then saw him turn onto Bottom road. Once on Bottom Road,
Bostic stepped on the gas, and he just took off really fast. The speed limit on Bottom Road
is 35 m.p.h., but Halsey estimated Bostic was traveling at 70 m.p.h. as he drove by. Halsey
then observed two vehicles swerve to avoid a head-on collision with Bostic.
Mrs. Rose also saw and identified Bostic's truck at the intersection of Bottom Road and
the Reno Highway. Mrs. Rose turned onto Bottom Road, following behind Bostic. Bostic
pulled away very fast, and Mrs. Rose estimated that he was driving between 60 and 70 or
approximately even a higher rate than that. The posted speed zone was 35 m.p.h. She saw
the vehicle a few minutes later when she arrived at the accident scene where she gave
assistance to Bostic after alerting others to Bianchi's vehicle, submerged in the canal.
[Headnotes 6, 7]
Bostic contends that the testimony was impermissible character evidence; however,
evidence of uncharged misconduct may be admitted to show intent, knowledge, or absence of
mistake or accident. NRS 48.045(2). Bostic was charged in counts III and IV of the
information with Reckless Driving Causing Death. The State contends that this testimony was
admissible to show the requisite mental state for reckless driving, willful or wanton disregard
of the safety of other persons or property of others.
In Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450 (1965), we discussed similar
observations of a speeding automobile prior to the unobserved collision. We held that the
testimony was plainly admissible on the issues of gross negligence and willful misconduct,
and also as independent proof of speed at the place of the accident. . . . Id. at 121, 399 P.2d
at 453. (Citations omitted.) Accord People v. Eagles, 183 Cal.Rptr. 784, 789-790
(Cal.Ct.App. 1982) (evidence of excessive speed resulting in near collision is relevant to
knowledge of risk even where prior uncharged conduct occurred several hours before
accident).
[Headnote 8]
Additionally, Bostic contends that the district court erred in admitting the testimony of Mr.
Watkins and Mrs. Baker, who testified as rebuttal witnesses. Bostic testified in his defense
that on June 15, 1985, the day of the accident, he was in Fallon attending a VFW convention.
He stated that he was at the convention from 1:30 in the afternoon, when he returned from
lunch, until 5:30 or 6:00 that afternoon. He also testified that he had never before traveled on
Bottom Road. The testimony of each witness for the purpose of contradicting Bostic's
testimony is clearly distinguishable from the use of specific acts of misconduct to impeach
the accused's character or credibility.
104 Nev. 367, 372 (1988) Bostic v. State
clearly distinguishable from the use of specific acts of misconduct to impeach the accused's
character or credibility. See generally McCormick On Evidence 42 (E. Cleary 3rd ed. 1984).
Bostic next contends that the district court erred in allowing Bostic to be cross-examined
at length regarding certain decals and bumper stickers on his truck. No contemporaneous
objection was made; the objection was waived and will be not considered on appeal. Snow v.
State, 101 Nev. 439, 447, 705 P.2d 632, 638 (1985).
[Headnote 9]
Lastly, Bostic contends that the district court improperly commented on the evidence to
the jury. Article 6, 12 of the Nevada Constitution provides: Judges shall not charge juries
in respect to matters of fact, but may state the testimony and declare the law. Bostic argues
that the district court judge disparaged the evidence to the jury.
The statements of which Bostic complains were made in reference to photographs being
admitted. The court stated:
Now, the witness has testified that there is some graininess, some problems with
telescopic results for one reason or another, but they are the best evidence that we have
concerning that intersection and should be considered by the jury. So they are admitted
into evidence as Defendant's exhibit N through X. . . .
We find that the district court did nothing more than accurately state the testimony of the
witness. Accordingly, we find no error.
We have considered all assignments of error raised by Bostic and find them to be without
merit. Thus, for the reasons set forth, we affirm the judgment of conviction.
____________
104 Nev. 372, 372 (1988) Cerminara v. California Hotel and Casino
CRAIG CERMINARA, Appellant, v. CALIFORNIA HOTEL AND CASINO dba SAM'S
TOWN HOTEL GAMBLING HALL AND BOWLING CENTER, Respondent.
No. 18058
August 25, 1988 760 P.2d 108
Appeal from judgment notwithstanding the verdict and award of attorney fees. Eighth
Judicial District Court, Clark County; Earle W. White, Judge.
Patron brought suit against dance hall, alleging assault and battery, false arrest and false
imprisonment, intentional infliction of emotional distress and negligence.
104 Nev. 372, 373 (1988) Cerminara v. California Hotel and Casino
of emotional distress and negligence. Following jury verdict for patron, the district court
granted motion for judgment notwithstanding the verdict on punitive damage award, and
patron appealed. The Supreme Court held that: (1) punitive damages award was proper, even
though special verdict awarded no compensatory damages for individual torts, and (2) issue
of punitive damages was for jury.
Reversed.
Hilbrecht & Associates and Frederick S. Geihs, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and John Gormley, Las Vegas, for Respondent.
1. Damages.
If actual award of damages for intentional torts was necessary to support award of punitive damages,
special verdict, liberally construed, contained such an award insofar as $5,000 total damages was
intended to be a lump compensatory award for harm suffered from all three torts committed against dance
hall patron.
2. Master and Servant.
Whether dance hall, as principal, authorized and participated in oppressive or malicious acts, subjecting
hall to liability for punitive damages for acts of its employees injuring a patron, was for jury; testimony
established that dance hall manager, as hall's managing agent, initiated the evening's events by a violent
overreaction to an incident involving patron.
OPINION
Per Curiam:
This is an appeal from an order granting judgment notwithstanding the verdict following a
jury verdict. The trial judge held that as a matter of law, the jury's punitive damage award
could not be sustained. We disagree and reverse.
The Facts
Appellant Cerminara was a regular patron at respondent Sam's Town Hotel and Casino.
During the evening of September 4, 1983, Randy Vickrey and his wife Lisa joined Cerminara
and Cerminara's brother-in-law Mike Morabito at Sam's Town's dance hall. Around 1:30
a.m., after spending a couple of hours at the hall, all four decided to leave. Randy Vickrey
met a man the parties referred to as Dudley Do Right
1
near the exit and they visited and
laughed about a previous encounter at Sam's Town.
____________________

1
Because no one at trial knew this person's real name, witnesses and counsel used this nickname.
104 Nev. 372, 374 (1988) Cerminara v. California Hotel and Casino
visited and laughed about a previous encounter at Sam's Town. Unexpectedly, Morabito came
up and took a wild swing at Do Right, missing him. Cerminara and Vickrey quickly
intervened and attempted to escort Morabito out of the dance hall.
Cerminara, Morabito and the Vickreys testified to the following sequence of events. As the
two men were taking Morabito out of the hall, Don Lovett, the dance hall manager,
2
suddenly came charging in like a maniac. He pushed or stiff-armed Cerminara, knocking
him over a table. Lovett then choked Randy Vickrey until he passed out. Lovett also picked
up Lisa Vickrey by the neck, choking her. Security guards then arrived and handcuffed Randy
Vickrey.
Lovett and the guards escorted Cerminara and Morabito to a small security office,
dragging Vickrey, with his hands handcuffed behind his back and his feet dragging, down
some stairs. Once they were in the office, Louis Hines, the casino shift manager, instructed
the security guards, Fitro, Odom, Rude, and Puentes, to 86 the three men.
3

Odom tried to take Vickrey's picture so that it could be used, in the future, to keep him out
of Sam's Town. However, Cerminara put his hand in front of the camera, protesting that they
had to explain why they were doing this. A guard pushed him down on a chair. When
Morabito then told the guards to leave his brother-in-law alone, two guards wrestled
Morabito to the floor. When Cerminara tried to pull one of the guards off Morabito, another
security guard grabbed Cerminara's arm and pulled it way up behind his back, forcing
Cerminara to his knees. Cerminara hollered that they had broken his arm. Despite his
complaints, the guards handcuffed Cerminara's hands behind his back. Cerminara continued
to complain about his arm, which began to swell.
When Fitro saw the condition of Cerminara's arm, he told the other guards to uncuff him
and to cancel an earlier request for police. The guards told them they were 86ed and
escorted them off the property. Vickrey testified that by that time, Craig couldn't even
straighten his arm out. He couldn't put it down. He had to hold it up from the pain. It was
already swollen twice its size in the elbow and it was already turning black."
____________________

2
Lovett, over six feet tall, apparently weighed more than two hundred pounds.

3
86 is a term, used in the casinos, referring to the process of permanently ousting someone from an
establishment or group of establishments. When the casinos 86 someone, security reads him the Nevada
Revised Statute dealing with trespass, attempts to get his picture for future reference, informs him that he is not
welcome on the premises, and warns him not to come back.
104 Nev. 372, 375 (1988) Cerminara v. California Hotel and Casino
size in the elbow and it was already turning black. When Vickrey rejoined his wife Lisa, her
neck was discolored.
4

Lisa and Randy Vickrey immediately went to the police in an unsuccessful attempt to have
Lovett charged with assault and battery. Cerminara went to a doctor and determined his
elbow had been dislocated.
5

Cerminara brought an action against Sam's Town alleging, among other causes of action,
(1) assault and battery (2) false arrest and false imprisonment (3) intentional infliction of
emotional distress, and (4) negligence.
After considering the evidence, the jury concluded that Sam's Town was negligent in its
treatment of Cerminara. The jury found that Sam's Town had battered Cerminara and
intentionally inflicted emotional distress. However, in response to Issues 6, 7, and 8 of the
special verdict form, the jury left blank the amount of damages Cerminara suffered from
Sam's Town's negligence, answered $0 for the amount of damages Cerminara suffered from
battery, and answered $0 for the amount of damages Cerminara suffered from intentional
infliction of emotional distress. Finally, in response to Issue 11 of the special verdict form,
the jury divided the total amount of [past and future] compensatory damages into $3,000
past damages, $2,000 future, and awarded Cerminara $100,000 in punitive damages.
Eighteen days after the jury verdict, Sam's Town filed a motion for judgment
notwithstanding the verdict on the punitive damage award. Sam's Town argued that as a
matter of law the punitive damage award could not be sustained without an accompanying
award of compensatory damages for an intentional tort.
____________________

4
The Sam's Town employees' version of the night's events was quite different. Don Lovett testified that after
being informed of a problem, he went over to try to settle matters. He testified that when he tried to calm the
men down, Randy Vickrey pushed him and two of the other men started fighting. He testified that he then
stopped the fighting, using only reasonable force to do so. He testified that the other security guards handcuffed
Vickrey before taking him down to the security room because Vickrey struggled, protested, and would not
peacefully comply. He denied choking Vickrey or stiff-arming Cerminara.
Odom testified that, when the men were taken to the security room, the casino manager, Ed Hines, told
security to 86 the men. Odom tried to take Morabito's picture so that they would know, in the future, that
Morabito had been 86ed. Odom testified that Morabito then smashed the camera into his face. When the
guards tried to restrain Morabito, Cerminara jumped on one of them and, according to Odom, it turned into a
major free for all. Either in the process of getting Cerminara off the guard and back into a chair, or in the
process of handcuffing him, one of the guards somehow twisted the arm.

5
A doctor who examined the arm testified that Cerminara's ulnar nerve was torn loose and continued to cause
pain and discomfort. Calcification had also occurred.
104 Nev. 372, 376 (1988) Cerminara v. California Hotel and Casino
award of compensatory damages for an intentional tort. It also argued that there was no proof
that Sam's Town ratified or approved any alleged tort by its employees. The district court
granted this motion and also awarded Sam's Town approximately $5,000 in costs and
attorney's fees. Cerminara appeals from the court's decision.
Discussion
NRS 42.010 allows punitive damages to be awarded when a defendant [h]as been guilty
of oppression, fraud or malice, express or implied. In this case, the jury concluded that Sam's
Town assaulted, battered, and intentionally inflicted Cerminara with emotional distress. It
also concluded that Sam's Town's employees acted maliciously or oppressively, awarding
$100,000 in punitive damages. However, as noted, in two of the blanks on the verdict form
where the jury was requested to decide the amount of damages Cerminara suffered from
intentional torts, the jury filled in zeros.
On motion, the district court struck the jury award of punitive damages, concluding:
(2) The jury did not award any compensatory damages to the Plaintiff as a result of
the assault and battery or intentional infliction of emotional distress;
(3) As a matter of law, the compensatory damages awarded to the plaintiff was
[sic] for negligence only, and such a recovery cannot support an award of punitive
damages. . . .
We have noted that before granting judgment notwithstanding the verdict:
[T]he party favored by the verdict is entitled to have the testimony read in the light
most advantageous to him, and to be given the benefit of every inference of fact fairly
deductible therefrom. Accordingly, an application for such judgment [should] be
refused where there is evidence tending to support the verdict, or where there is a
conflict of evidence, so that the jury could properly decide, either way, even though the
Court would be justified in granting a new trial.
Jacobson v. Manfredi, 100 Nev. 226, 234-35, 679 P.2d 251, 256-57 (1984) (quoting Dudley
v. Prima, 84 Nev. 549, 551, 445 P.2d 31, 32 (1968)).
[Headnote 1]
After review of the record, we conclude that there is substantial evidence supporting the
jury's findings that (1) Cerminara was assaulted, battered, and inflicted with emotional
distress and (2) Sam's Town employees acted maliciously or oppressively in their attempt
to eject Cerminara from their establishment.
104 Nev. 372, 377 (1988) Cerminara v. California Hotel and Casino
Sam's Town employees acted maliciously or oppressively in their attempt to eject Cerminara
from their establishment. The overriding issue, however, is whether the manner in which the
jury completed the special verdict form precludes an award of punitive damages. Cerminara
argues that, in order to award punitive damages, a jury, as long as it has found intentional
torts, need not award actual damages for these intentional torts. Sam's Town argues, on the
other hand, that the jury, as a basis for punitive damages, must award actual damages.
We conclude that the issue of whether actual damages must be awarded need not be
decided in this case. Although the special verdict form could be interpreted differently, one
reasonable interpretation is that the jury intended the $5,000 total damages to be a lump
compensatory award for harm suffered from all three torts committed against Cerminara.
6
As noted above, on a motion for judgment notwithstanding the verdict, the court must view
the evidence in the light most favorable to the non-moving party, and this, we note, entails a
liberal construction of a jury's special verdict form. As observed in James v. Public Finance
Corp., 47 Cal.App.3d 995, 1005-06, 121 Cal.Rptr. 670, 677 (1975):
[J]urors are not of course versed in the niceties of legal jargon and its many subtle
distinctions, and they may have understandably been confused. Had a further
explanation been given when they returned with the verdict that they did, it is most
probable that any difficulties resulting therefrom would have been avoided.
The verdict in this case should be liberally construed. . . .
The special verdict in the instant case, liberally construed, suggests that the jury in fact did
award actual damages for intentional torts, on which punitive damages could be based.
Therefore, because actual damages were awarded, and assuming, arguendo, they are
necessary to support punitive damages, the punitive damage award should not have been
reversed for lack of actual damages.
____________________

6
During oral argument, Sam's Town conceded that the special verdict form could be so interpreted:
Justice Steffen: It appears to me that the verdicts are highly anomalous. They determine that the
respondent is 90% negligent and provide no amount of damages. They find that the appellant was
assaulted and battered and no damages. Same with the intentional infliction of emotional distress. They
found liability with no damages. And then, at the very end, after finding that there was malice,
oppression,
or fraud, they at last place a damage figure. . . . [I]t appears to me that what they have done is placed
a compensatory damage figure that applies to all three actions. Doesn't that seem to be what they have
done? . . .
Mr. Gormley: That's one interpretation, to be quite frank. As you can well imagine, I've given some
thought to try and interpreting [sic] this jury verdict, and I'm not quite sure what they have done.
104 Nev. 372, 378 (1988) Cerminara v. California Hotel and Casino
they are necessary to support punitive damages, the punitive damage award should not have
been reversed for lack of actual damages.
[Headnote 2]
The next issue we must decide is whether the jury correctly concluded that Sam's Town
was liable for punitive damages for the acts of its employees. The jury was given, at
Cerminara's request, the following instructions:
Punitive damages may be awarded against a principal for acts of the employee only if:
. . . .
The principal authorized or ratified the conduct which is found to be the basis for
punitive or exemplary damages.
If the principal is a corporation, the . . . authorization, ratification, or act of
oppression, fraud or malice must be on the part of any officer, director, or managing
agent of the corporation.
The district court also concluded that the punitive damage award could not be sustained
because there was no evidence of manager or director participation, ratification, or approval
of the intentional torts. We conclude, after consideration of the record and oral argument, that
there was evidence that Sam's Town, as a principal, authorized and participated in the
oppressive or malicious acts.
The jury was instructed that Sam's Town could be liable for punitive damages if the
malicious acts were performed or authorized by a managing agent. In determining who is a
managing agent, Ghiardi and Kircher note: In determining whether an agent acts in a
managerial capacity, [the key] is to look to what the individual is authorized to do by the
principal and to whether that agent has discretion as to both what is done and how it is done.
Job titles . . . should be of little importance. J. Ghiardi and J. Kircher, Punitive Damages
24.05 (1984).
The Sam's Town employees responsible for Cerminara's treatment were Lovett, Fitro,
Rude, Puentes, and Odom. Fitro, Rude, Puentes, and Odom were security guards, clearly not
possessing the necessary discretion and authority to be considered managerial agents.
However, at trial, Don Lovett testified that as dance hall manager, he hired[d] employees, set
schedules, [made] sure the room was up set [sic], was taken care of, [and] order[ed] liquor.
He added that he was in charge of making sure that no minors were allowed in the bar and
that the patrons were all taken care of and no one was harassed or hassled. Given Lovett's
responsibilities, discretion and authority concerning the dance hall, and interpreting the
evidence in a light most favorable to Cerminara, we conclude that the jury could have
reasonably considered Lovett a managing agent of Sam's Town.
104 Nev. 372, 379 (1988) Cerminara v. California Hotel and Casino
Cerminara, we conclude that the jury could have reasonably considered Lovett a managing
agent of Sam's Town.
Accordingly, the record contains evidence of managerial authorization of and involvement
in the oppressive and malicious acts. Testimony established that Lovett, as a managerial
agent, initiated the evening's events by a violent overreaction to the Morabito/Do Right
incident.
7
Once again, the standard for granting motions for judgment notwithstanding the
verdict requires us to view the evidence in the light most favorable to Cerminara. Because the
record is not devoid of evidence suggesting managerial participation and authorization of
oppressive action, the district court's ruling is reversed, and the jury's verdict reinstated.
____________________

7
Sam's Town argued, at oral argument, that even assuming Lovett was a managerial agent, Sam's Town could
not be liable for punitive damages because Lovett was not in the security office at the time Cerminara's elbow
was dislocated. However, although Lovett may not later have actually participated in the excessive force in the
security office, by pushing Cerminara over the table and choking both Randy and Lisa Vickrey before taking the
men to the security office, he established a tone or pattern of unnecessary and excessive force that continued
until the guards realized they may have seriously injured Cerminara's arm. Moreover, Lovett's pushing
Cerminara over a table, in and of itself, could have been the basis for the jury award.
____________
104 Nev. 379, 379 (1988) Flangas v. State
JOHN FLANGAS, CARMEN FLANGAS, ANGELO TOGNONI and EMELIA TOGNONI,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 17735
August 25, 1988 760 P.2d 112
Appeal from judgment. Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
Eminent domain proceeding was brought. The district court granted the State's motion for
partial summary judgment. Appeal was taken. The Supreme Court held that evidence
indicated that lease addendum pertaining to rental value was valid and should have been
admitted in proceeding governing property which was subject of lease.
Reversed and Remanded.
Stephens, Kosach, Knight and Edwards, Reno, for Appellants.
Brian McKay, Attorney General, William Raymond, Deputy Attorney General, and
Michael G. Chapman, Deputy Attorney General, Carson City, for Respondent.
104 Nev. 379, 380 (1988) Flangas v. State
1. Eminent Domain.
Evidence indicated that lease addendum pertaining to rental value was valid and should have been
admitted in eminent domain proceeding governing property which was subject of lease, even though date
was placed on addendum that preceded lease's effective date and addendum was signed by president of
lessee individually and without notice of his corporate position; record showed that both parties to lease
abided by addendum for four years and believed themselves bound by it, and although backdated
addendum was executed after lessee took possession of property, there was no evidence suggesting that
addendum was backdated for improper purpose.
2. Eminent Domain.
It could not be conclusively presumed that date on lease addendum established that it was created at a
time when lessee did not have interest in property under statute creating conclusive presumption that facts
recited in written instrument are true; another statute provides that fact that writing is truly dated is a
disputable presumption and date of addendum was in dispute in eminent domain action. NRS 47.240,
subd. 2, 47.250, subd. 12.
OPINION
Per Curiam
1
:
In 1983 the State of Nevada condemned part of the property owned by appellants Flangas
and Tognoni. The district court granted the State's motion for partial summary judgment and
ordered that evidence of an addendum to the property's lease between appellants and their
lessee be withheld from the jury. The jury awarded $95,000.00 to appellants based on the
property's original lease.
Appellants contend that the district court erred in granting partial summary judgment
because the addendum was a valid modification of the lease. We agree and vacate the
judgment of the district court.
Appellants leased their property to a retail tire dealership. The State commenced a
condemnation proceeding to acquire 6,061 square feet along one side of the property. The
property's original lease, then in its fourth of five years, provided for rent of $0.40 per square
foot. Appellants and their tenant, however, negotiated an addendum shortly after entering into
the lease that extended its term to ten years, with a $0.25 per square foot rent for the first five
years and $0.55 per square foot rent for the second five years. Appellants and the lessee
placed a date on the addendum that preceded the lease's effective date. Moreover, the
addendum was signed by the president of the leasing company individually and without
notice of his corporate position. Because of these irregularities in the addendum's
formalities, the district court granted the State's motion for partial summary judgment
and ordered that evidence of the addendum be withheld from the jury.
____________________

1
The Honorable E. M. Gunderson, Chief Justice, voluntarily disqualified himself from the case.
104 Nev. 379, 381 (1988) Flangas v. State
irregularities in the addendum's formalities, the district court granted the State's motion for
partial summary judgment and ordered that evidence of the addendum be withheld from the
jury.
The State presented uncontroverted appraisal evidence that the fair rental value of the
property was $0.40 per square foot. The appraisal disregarded the addendum's second
five-year term and only considered the original five-year lease of $0.40 per square foot. The
appraisal recommended awarding $90,000.00 as just compensation. Based on the property's
original lease and the State's appraisal, the jury awarded $95,600.00 to appellants.
[Headnote 1]
Appellants contend the district court erred in granting partial summary judgment because
the evidence showed the addendum was a valid and enforceable modification of the lease. On
a summary judgment motion the district court is obligated to accept as true all evidence
favorable to the party against whom the motion is made. See NRCP 56; Hidden Wells Ranch
v. Strip Realty, 83 Nev. 143, 425 P.2d 599 (1967). The record shows that both parties to the
lease abided by the addendum for four years and both believed themselves bound by it. While
there is no express ratification of the addendum in the record by the leasing corporation, the
record does not support the conclusion that the addendum was not a valid and enforceable
modification of the property's lease. Although the backdated addendum was executed after
the lessee took possession of the property, there is no evidence suggesting that the addendum
was backdated for an improper purpose. The district court erred in granting partial summary
judgment because the evidence indicated that the addendum was valid.
[Headnote 2]
The district court held that because of NRS 47.240(2) it must be conclusively presumed
that the dates on the addendum established that it was created at a time when the lessee did
not have an interest in the property. NRS 47.240(2) creates a conclusive presumption that the
facts recited in a written instrument between the parties are true. NRS 47.250(12), however,
provides that the fact that a writing is truly dated is a disputable presumption. As the date of
the addendum was in dispute by the State but not as between the parties thereto, the district
court erred in granting partial summary judgment based on NRS 47.240(2).
In determining market value, sellers and prospective purchasers would consider the
additional rent already negotiated and due over the addendum's second five years. The
addendum should have been admitted and considered in calculating the fair market value of
appellants' property. The district court erred in excluding the addendum as evidence. We
vacate the district court judgment and remand for a new trial on damages, unless the court
is able to compute with mathematical certainty, based upon the formula previously used
by the jury in making its award, the appropriate amount of the revised judgment using
the increased rental rate specified in the addendum, in which case, the district court shall
enter judgment accordingly.
104 Nev. 379, 382 (1988) Flangas v. State
judgment and remand for a new trial on damages, unless the court is able to compute with
mathematical certainty, based upon the formula previously used by the jury in making its
award, the appropriate amount of the revised judgment using the increased rental rate
specified in the addendum, in which case, the district court shall enter judgment accordingly.
____________
104 Nev. 382, 382 (1988) Hart v. Hecht
TONI A. HART, Appellant, v. HAROLD
M. HECHT, Respondent.
No. 17784
August 25, 1988 760 P.2d 114
Appeal from judgment dismissing appellant's third-party complaint. Eighth Judicial
District Court, Clark County; David Zenoff, Senior Justice.
Client brought suit against attorney who acted as her escrow agent for violation of escrow
agreement in making construction contract payments. The district court dismissed the action.
On appeal, the Supreme Court, held that attorney acting as construction escrow agent was
liable to client for amounts paid to contractor in violation of agreement especially where
attorney arranged to have contractor's bond with State waived.
Reversed and Remanded.
[Rehearing denied May 18, 1989]
Mills & Gibson, Las Vegas, for Appellant.
Rawlings Olson & Cannon, and Janice A. Hodge, Las Vegas, for Respondent.
Deposits and Escrows.
Attorney acting as construction escrow agent was liable to client for amounts paid to contractor in
violation of escrow agreement, by making construction cost payments without proper documentation
including lien releases, especially where attorney arranged to have the contractor's bond with State waived;
the contractor had used some of the monies received on unrelated matters.
OPINION
Per Curiam:
Toni Hart sued her attorney, Harold Hecht, for wrongfully disbursing funds entrusted to
him. The district court dismissed Hart's complaint. Hart contends that the district court erred
in finding that Hecht did not violate their agreement. We agree.
104 Nev. 382, 383 (1988) Hart v. Hecht
Hart's home was destroyed by fire. Hecht suggested to Hart that she use Andrea
Licciardello (Andrea), a contractor to rebuild the house. Hart accepted the suggestion but
wished to avoid using a professional escrow agency to disburse construction funds and agreed
orally with Hecht that he would act in that capacity. It was understood that Hecht would pay
the bills and invoices presented to him by Andrea and the subcontractors when accompanied
by valid lien releases.
Over a five-month period, Hart gave Hecht $152,000.00. Hecht disbursed $61,000.00
directly to subcontractors and $91,000.00 to Andrea. Of the $91,000.00, Hecht paid
$64,995.00 to Andrea without documentation simply upon Andrea's request for construction
money; Andrea failed to account for $57,000.00 of that sum and spent an additional
$15,000.00 on unrelated expenses. Hart fired Andrea in January, 1982, when the house was
thirty percent complete.
Two materialmen who had not been paid sued Hart and Andrea. Hart filed a third-party
complaint against Hecht and Andrea for failing to pay the suppliers. The district court found
for the suppliers against Hart and Andrea. The court also entered judgment against Andrea on
Hart's third-party complaint for $90,000.00 plus the misspent $15,000.00; additionally,
judgment was rendered for the $130,000.00 it cost Hart to complete the house. The court
dismissed Hart's third-party complaint against Hecht with prejudice.
Hart's third-party complaint alleged that Hecht failed to disburse funds in accordance with
their agreement. Hart claims that Hecht violated the trust agreement by paying $64,995.00
directly to Andrea without obtaining bills, receipts or releases. We agree. The record is clear
the Hecht failed to follow the terms of his agreement with Hart.
We held in Broussard v. Hill, 100 Nev. 325, 329, 682 P.2d 1376, 1378 (1984), that in
managing monies deposited in escrow, the escrow agent is required to conduct his affairs
with scrupulous honesty, skill and diligence. See also Yapp v. State Bar of California, 402
P.2d 361 (Cal. 1965); Tucson Title Insurance Company v. D'Ascoli, 383 P.2d 119 (Ariz.
1963). Once Hecht agreed to hold and disburse Hart's funds he was constrained by this
heightened standard of care. Indeed, Hecht facilitated the project by informing the State
Contractors Board that he would pay the invoices of the subcontractors and obtain lien
releases. Hecht's written representation to the Board was provided in order to obtain a waiver
of the required contractor's bond; as a result, the Board waived the bond, leaving Hart
protected only by Hecht's skill and diligence if the contractor failed to perform.
104 Nev. 382, 384 (1988) Hart v. Hecht
Hecht did not act with scrupulous honesty, skill and diligence. Although Hecht did not
divert funds for his own use, he admitted that he agreed to pay Andrea only upon presentment
of receipts and releases. This he did not do. As a result, Andrea was able to squander a large
amount of the money entrusted to Hecht by Hart for the very purpose of preventing the type
of loss that occurred. The district court decision to dismiss Hart's third-party complaint
against Hecht was error. The court should have entered judgment against Hecht for the
amount paid by him in contravention of the agreement. We accordingly reverse the dismissal
of Hart's third-party complaint against Hecht and remand the matter to the district court with
instructions to enter judgment against Hecht in the amount of $64,995.00.
____________
104 Nev. 384, 384 (1988) Phillips v. Morrow
LAURA MORROW PHILLIPS, Appellant, v. LINDA
JUNE MORROW (ANDERSON), Respondent.
No. 17982
August 25, 1988 760 P.2d 115
Appeal from a judgment. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
First ex-wife attempted to execute on second ex-wife's house to satisfy recorded child
support judgment owed by mutual ex-husband. The district court determined that second
ex-wife's homestead exemption could be disregarded and house sold to satisfy first ex-wife's
child support judgment, and appeal was taken. The Supreme Court, held that: (1) under
weighing of equities as enunciated in Breedlove, first ex-wife was entitled to execute against
second ex-wife's house; (2) ex-husband had interest in second ex-wife's house at time first
ex-wife filed child support judgment; and (3) first ex-wife's claim was not barred by laches.
Affirmed.
Douglas A. Watkins, Las Vegas, for Appellant.
R. Steven Young and Joel Selik, Las Vegas, for Respondent.
1. Divorce.
First ex-wife was entitled to execute on house owned by second ex-wife in satisfaction of child support
obligation owed by ex-husband to first ex-wife's children under weighing of equities principle propounded
in Breedlove; second ex-wife's divorce granted her house on condition that she pay ex-husband $7,000
which would have been sufficient to satisfy first ex-wife's child support judgment, but
subsequent to divorce, second ex-wife effectively eliminated first ex-wife's access to
$7,000 fund by allowing ex-husband to continue living in house, paying his bills and
forgiving unpaid child support payments in return for ex-husband's satisfaction of
debt and husband's quit-claim of his interest in house to her.
104 Nev. 384, 385 (1988) Phillips v. Morrow
satisfy first ex-wife's child support judgment, but subsequent to divorce, second ex-wife effectively
eliminated first ex-wife's access to $7,000 fund by allowing ex-husband to continue living in house, paying
his bills and forgiving unpaid child support payments in return for ex-husband's satisfaction of debt and
husband's quit-claim of his interest in house to her.
2. Divorce.
Ex-husband had interest in second ex-wife's house at time first ex-wife recorded child support judgment
and thus, first ex-wife was entitled to execute on second ex-wife's house to satisfy child support arrearages;
ex-husband did not quit-claim his interest in property to second ex-wife until two years after first ex-wife
recorded judgment.
3. Divorce.
First ex-wife was not precluded from executing on second ex-wife's home to satisfy child support
arrearages under doctrine of laches on ground that first ex-wife could have satisfied judgment had she
continued collection efforts against former husband; fact indicated that after second ex-wife divorced
former husband his financial situation was such that second ex-wife advanced him money, paid his debts,
collected no child support payments from him, and allowed him to live with her for several months.
OPINION
Per Curiam:
Respondent Linda June Morrow Anderson (Linda) and appellant Laura Morrow Phillips
(Laura) are both ex-wives of William Morrow. During their marriage, Laura and Morrow
purchased a house. According to Laura, when she divorced Morrow, the divorce decree
awarded her the house on the condition that she pay to [Morrow] the sum of Seven
Thousand dollars or one-third of the net value of the real estate, whichever is greater.
Seventeen days after the divorce between Laura and Morrow, Linda recorded a child support
judgment against the house. Over five years later, Linda attempted to execute on the house;
Laura interposed a homestead exemption as a defense to Linda's judgment lien.
Pursuant to this court's ruling in Breedlove v. Breedlove, 100 Nev. 606, 691 P.2d 426
(1984), the district court ruled that Laura's homestead exemption could be disregarded and
her house sold to satisfy Linda's child support judgment. On appeal, Laura claims that (1)
under the rule of Breedlove, a balancing of the equities in the instant case requires a ruling in
her favor, (2) the district court erred in finding that Morrow had an interest in the house at the
time Linda recorded her judgment, and (3) the district court erred in failing to find the defense
of laches.
[Headnote 1]
First, in Breedlove we held that the homestead laws could not be used to protect a
husband's second family at the expense of depriving his first family of the support to which
they are entitled.
104 Nev. 384, 386 (1988) Phillips v. Morrow
depriving his first family of the support to which they are entitled. 100 Nev. at 609, 691 P.2d
at 428. Laura argues that Breedlove requires a balancing of the equities. We agree. Indeed,
our ruling in Breedlove was a result of our weighing the equities which, in that case, clearly
fell in the first wife's favor. However, despite the sharp contrast in facts between Breedlove
and the present case, we disagree that the equities of the present case require a ruling in favor
of Laura. According to Laura, her divorce from Morrow granted her the house on the
condition that she pay Morrow $7,000 or one-third of the value of the housewhichever was
greater. Without doubt, this money owed to Morrow by Laura would have been sufficient to
satisfy Linda's child support judgment.
1
However, subsequent to her divorce from Morrow,
Laura effectively eliminated Linda's access to the $7,000 fund by allowing Morrow to
continue living in the house, paying his bills, and forgiving unpaid child support
paymentsin return for Morrow's satisfaction of the debt owed to him by Laura.
Accordingly, some two years after their divorce, Morrow quit-claimed to Laura his interest in
the house. Under these facts, we conclude that the equities favor Linda. Were it not for
Laura's actions, Linda would have had a viable source from which to satisfy her child support
judgment.
[Headnote 2]
Second, we are unpersuaded that the district court erred in ruling that Morrow had an
interest in the house at the time Linda recorded her judgment. It is Laura who claims that the
residence was awarded to her on the condition that she pay Morrow $7,000 or one third of
the net value of the home. This condition was not met at the time Linda recorded her
judgment. Laura nonetheless argues that, even if Morrow's interest in the residence was not
terminated upon their divorce, his interest was terminated by agreement prior to the recording
of the judgment lien. We are persuaded that this agreement between Laura and Morrow
occurred after Linda recorded her lien. According to Laura, in consideration of allowing
Morrow to live rent free in the house several months after the divorce, paying certain of
Morrow's bills, and excusing Morrow's failure to pay child support payments due to her,
Morrow agreed that Laura's obligation under the divorce decree would be satisfied. These
facts, as related by Laura, belie the notion that the agreement was made before Linda recorded
her judgment. For example, by October 12, 1981 (the date Linda recorded her judgment),
Morrow could not have been in arrears on any child support payments to Laura; i.e., at
that date there was no child support to be "forgiven."
____________________

1
The record notes that Linda's original judgment was for $4,089.00 and that as of September 24, 1986, the
amount of the judgmentrepresenting principal and interest, less the amount of satisfaction receivedwas
$5,525.95.
104 Nev. 384, 387 (1988) Phillips v. Morrow
not have been in arrears on any child support payments to Laura; i.e., at that date there was no
child support to be forgiven. Furthermore, we note that it was almost two years after Linda
recorded her judgment that Morrow, by quit-claim deed, conveyed his interest in the property
to Laura.
[Headnote 3]
Finally, we disagree with Laura's claim that the district court erred in failing to find the
defense of laches. We have not been apprised of any case wherein a court has allowed the
defense of laches as a bar to execution on a child support judgment. Primarily, Laura bases
her laches argument on the claim that Linda could have satisfied her judgment had she
continued her collection efforts against Morrow. That argument is unpersuasive. Laura simply
bases her claim on Linda's past successful collection efforts. However, the facts, according to
Laura, show that after she divorced Morrow, his financial situation was such that Laura
advanced him money, paid his debts, collected no child support payments from him, and
allowed him to live in the house for several months. Thus, while Laura may have improved
the property and reduced her indebtedness thereon after her divorce from Morrow, we are
unpersuaded that Linda's failure to continue her efforts to collect from Morrow supports a
finding of laches.
Because Laura voluntarily participated in the dissipation of a discrete source of assets from
which Linda could have satisfied her judgment against Morrow, the Breedlove rationale
applies. The district court did not err in holding that Laura's residence is subject to Linda's
judgment lien. Accordingly, we affirm the decision of the district court.
2

____________________

2
This appeal was previously dismissed in an unpublished order of this court. Appellant has since petitioned
for rehearing. In the petition for rehearing, appellant requested that our decision be issued in a published
opinion. Respondent has opposed appellant's petition for rehearing, but does not oppose appellant's request that
our order be issued in a published opinion. Cause appearing, we deny appellant's petition for rehearing.
Nevertheless, we hereby issue this opinion in place of our order dismissing this appeal filed on June 23, 1988.
____________
104 Nev. 388, 388 (1988) Charles v. Lemons & Associates
DAVID F. CHARLES and MARGARET PEGGY CHARLES, Appellants, v. J. STEVEN
LEMONS & ASSOCIATES, a Corporation; CENTURY REALTY, a Corporation; LARRY
GEISENDORF, an Individual, Respondents.
No. 18134
August 25, 1988 760 P.2d 118
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Vendors brought action against broker and person who arranged loan for purchasers to
recover for misrepresentation and failure to disclose material information. The district court
entered judgment in favor of defendants, and vendors appealed. The Supreme Court held that:
(1) vendors could not recover from party who arranged loan to purchasers, but (2) trial court
erred in construing evidence in favor of broker on broker's motion for summary judgment.
Affirmed in part, reversed and remanded in part.
John Peter Lee and Grenville Thomas Pridham, Las Vegas, for Appellants.
Eric Zubel and G. Michael Jackson, Las Vegas, for Respondent J. Steven Lemons &
Associates.
Ordowski & Eads, Las Vegas, for Respondents Century Realty and Larry Geisendorf.
1. Judgment.
Vendors who allege that broker failed to disclose to them the fact that purchasers had listed on their
credit application a combined income of only $2,400 per month, that the purchasers expected to use
income from a speculative gold investment to meet their financial obligations on the sale, that the
purchasers had a second mortgage secured by a promissory note with an interest rate of 22.5 percent and a
stated annual percentage rate of 30.85 percent raised a genuine issue of material fact in vendors' action
against broker for breach of fiduciary duty.
2. Judgement.
District court erred in construing evidence in favor of parties moving for summary judgment.
3. Fraud.
Vendors could not recover on theory of misrepresentation from person who arranged loan to purchasers
despite vendors' claim that they relied on broker's statements that the loan arranger had found the
purchasers to be financially qualified.
104 Nev. 388, 389 (1988) Charles v. Lemons & Associates
OPINION
Per Curiam:
Appellants David F. Charles and Margaret Peggy Charles (the Charleses) retained
respondents Century Realty (Century) and its agent and part-owner Larry Geisendorf to sell
their house at 3220 Garheim in Clark County. Geisendorf brought the Charleses an offer from
Frank and Lois Conklin (the Conklins). The offer set forth that the Conklins would assume
the loan on the first deed of trust on the property and execute a third deed of trust in favor of
the Charleses in consideration of the Charleses' financing $39,700 of the total sale price.
Escrow was closed in the sale and the Conklins moved into the house, but they made no
payments on the loans. After two months, the Charleses foreclosed their interest in the
property and began payments on the obligations.
In their complaint the Charleses alleged causes of action including affirmative
misrepresentation and failure to disclose material information on the part of Lemons,
Geisendorf and Century. Respondents denied these allegations and raised affirmative
defenses including assumption of risk and contributory negligence on the part of the
Charleses.
On January 7, 1987, after the parties had conducted discovery, Geisendorf and Century
filed their motion for summary judgment. The Charleses opposed the motion. After a hearing,
the court granted the motion and entered judgment for Geisendorf and Century on February 3,
1987.
Lemons filed its motion for summary judgment on February 2, 1987. The Charleses
promptly filed their opposition to Lemons' motion. Following a hearing, the district court, on
March 10, 1987, entered judgment dismissing with prejudice the Charleses' claims against
Lemons and awarding costs in the amount of $544 to Lemons.
The Charleses argue that the district court erred in granting summary judgment and
dismissing their complaint because unresolved issues of material fact remained outstanding,
because respondents were not entitled to summary judgment as a matter of law and because
the court misplaced the burden of proof in Geisendorf and Century's motion for summary
judgment.
[Headnote 1]
Summary judgment should not be entered when material issues of fact exist. Shepard v.
Harrison, 100 Nev. 178, 678 P.2d 670 (1984). We have previously explained constraints
applicable to summary proceedings as follows: Trial judges are admonished to exercise
great caution in granting summary judgment.
104 Nev. 388, 390 (1988) Charles v. Lemons & Associates
Trial judges are admonished to exercise great caution in granting summary judgment.
Litigants are not to be deprived of a trial on the merits if there is the slightest doubt as
to the operative facts. . . . The trial court should review the record searchingly for
material issues of fact, the existence of which eliminate the propriety of summary
treatment.
Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982) (citations
omitted).
In their motion for summary judgment, Geisendorf and Century argued that they owed no
duty to the Charleses which could give rise to a cause of action, that they had not guaranteed
that the Conklins would meet their obligations, and that the Charleses assumed the risks
involved in the transaction.
[Headnote 2]
The Charleses opposed Geisendorf and Century's motion for summary judgment, asserting
that Geisendorf failed to disclose to them that the Conklins had listed on the credit
application a combined income of only $2,400 per month, that the Conklins expected to use
income from a speculative gold investment to meet their financial obligations in the sale, and
that the Conklins' second mortgage on the property was secured by a promissory note with an
interest rate of 22.5 percent and a stated annual percentage rate of 30.85 percent. They said
this information would have been material to their decision to accept the offer, and that
Geisendorf breached a fiduciary duty to them in failing to disclose it. The Charleses also
stated that Geisendorf's telling them the Conklins were financially capable and qualified to
make payments on the loans and to buy the property was either an affirmative
misrepresentation or the result of a breach of fiduciary duty in failing to investigate. The
motion was supported by a affidavit of Margaret P. Charles. In their answer, Geisendorf and
Century denied these allegations. Therefore, these disputed issues of fact existed between the
parties.
Upon questioning by counsel, the district court said it granted summary judgment
[b]ecause I think when you take all of the evidence in its light most favorable to the
defendant Geisendorf and . . . Century Realty, that there remains no genuine issue of a
material fact. Geisendorf and Century are the moving parties.
[Headnote 3]
In deciding whether summary judgment is appropriate, the evidence must be viewed in
the light most favorable to the party against whom summary judgment is sought, and the
factual allegations of that party must be presumed correct. Pacific Pools Constr. v. McClain's
Concrete, 101 Nev. 557, 559, 706 P.2d 849, 851 (1985) (emphasis added). [T]he burden of
establishing the non-existence of any genuine issue of fact is on the party moving for
summary judgment." Id. {citing Hoffmeister Cabinets of Nev. v.
104 Nev. 388, 391 (1988) Charles v. Lemons & Associates
the non-existence of any genuine issue of fact is on the party moving for summary judgment.
Id. (citing Hoffmeister Cabinets of Nev. v. Bivins, 87 Nev. 282, 486 P.2d 57 (1971)). The
district court erred in construing the evidence in favor of Geisendorf and Century, the parties
moving for summary judgment. The fact that outstanding issues of material fact remained, as
discussed above, supports the conclusion that the district court construed the evidence in
favor of Geisendorf and Century, and did not merely misidentify the parties.
In their motion for summary judgment, Geisendorf and Century did not submit to the trial
court any detailed response, supported by citations to authority, concerning the legal issues of
the Charleses' allegations that they breached a fiduciary duty by failing to disclose or by
misrepresenting material facts. Summary judgment is appropriate only where no genuine
issue of material fact remains for trial and one party is entitled to judgment as a matter of
Law. Id. (emphasis added). If, as they must be, the facts presented by the Charleses are
accepted as true, Geisendorf and Century did not demonstrate their entitlement to summary
judgment as a matter of law.
In its motion for summary judgment, Lemons presented deposition testimony in which the
Charleses admitted that Lemons made no representations to the Charleses concerning the
Conklins and that Lemons had no direct contact or communication with the Charleses. The
Charleses could point only to their reliance on Geisendorf's statements that Lemons had
found the Conklins to be financially qualified, and Geisendorf's apparent reliance on Lemons
in his presentation of the Conklins as qualified buyers, to support their cause of action against
Lemons. Lemons arranged a loan to the Conklins that was secured by the property the
Conklins bought from the Charleses, but there was no contract between Lemons and the
Charleses. The Charleses have not presented any evidence that dispels Lemons'
demonstration of the lack of material issues of fact or legal causes of action by the Charleses
against Lemons in this case. Accordingly, the district court was correct in finding that there
existed no genuine issue of material fact as to Lemons and in granting summary judgment and
entering its judgment of dismissal with prejudice with respect to the Charleses' claims against
Lemons.
Because, when the evidence is construed in the light most favorable to the Charleses, there
remain disputed issues of material fact, and because Geisendorf and Century are not entitled
to summary judgment as a matter of law, we conclude that the district court erred in granting
Geisendorf and Century's motion for summary judgment and in dismissing the Charleses'
action with respect to Geisendorf and Century. The district court's order granting Geisendorf
and Century's motion for summary judgment is vacated and this matter is remanded to
the district court for further proceedings consistent with this opinion.
104 Nev. 388, 392 (1988) Charles v. Lemons & Associates
granting Geisendorf and Century's motion for summary judgment is vacated and this matter is
remanded to the district court for further proceedings consistent with this opinion. The district
court's order granting Lemons' motion for summary judgment and its judgment of dismissal
with prejudice and award of costs is affirmed with respect to respondent J. Steven Lemons &
Associates.
____________
104 Nev. 392, 392 (1988) Lavery v. Wolden
RUTH LAVERY and RICHARD LAVERY, Appellants and Cross-Respondents, v.
WALLACE WOLDEN aka SONNY WOLDEN, and WILLIAM RENTSCH,
Respondents and Cross-Appellants.
No. 18267
August 25, 1988 760 P.2d 120
Appeal and cross-appeal from judgment. Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
Homeowners brought action against builder and employee for faulty construction. The
district court dismissed employee and entered judgment in favor of homeowners. Builder
appealed. The Supreme Court held that six-year statute of limitations for contract actions
applied to bar action.
Reversed.
Smith and Corder, Reno, Attorneys for Appellants and Cross-Respondents.
McAuliffe, White, Long and Guinan, Reno, Attorneys for Respondents and
Cross-Appellants.
Limitation of Actions
When six-year statute of limitations, which was in effect when builder completed house and which
pertained to actions in tort or contract against builder, was declared unconstitutional before homeowners
brought action against builder for faulty construction, six-year statute of limitations for actions on written
contracts applied to bar homeowners' action. NRS 11.190, 11.205.
OPINION
Per Curiam:
Appellants Ruth and Richard Lavery commenced this action in 1984 against respondent
Wallace Wolden and his employee, William Rentsch, to recover damages for the faulty
construction of their house in 1977.
104 Nev. 392, 393 (1988) Lavery v. Wolden
their house in 1977. The district judge awarded judgment against respondent Wolden in the
sum of $10,552.55, plus $5,000.00 for attorneys' fees, and dismissed Rentsch from the action.
The Laverys have appealed the amount of the award of attorneys' fees and the dismissal of
Rentsch. Wolden has cross-appealed, seeking reversal of the judgment on the grounds that it
is barred by the statute of limitations. We agree with Wolden and reverse.
In October 1976, the Laverys contracted with Wolden to build their house. After moving
into the house in 1977, the Laverys noticed that the combined living room/dining room floor
vibrated. In 1983, the Laverys discovered that the floor, roof and decks lacked sufficient
support and that Wolden had not followed the plan's specifications.
In July, 1984, the Laverys commenced this action. The district court found that latent
structural defects tolled the statute of limitations until they were discovered, and awarded the
Laverys $10,552.55 in damages plus $5,000.00 for attorneys' fees and costs against Wolden.
At the time Wolden completed the Laverys' house in 1977, NRS 11.205, a six-year statute
of limitations, was in effect.
1
This court declared NRS 11.205 unconstitutional. See State
Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983). In 1983 the legislature enacted
NRS 11.204, creating an eight-year statute of limitations, which the district court held
governed the instant case.
2

Wolden contends that since NRS 11.205 was in effect when the Laverys' claim accrued, its
six-year time limit bars this action.
____________________

1
NRS 11.205 provided, in pertinent part:
1. No action in tort, contract or otherwise shall be commenced against any person performing or
furnishing the design, planning, supervision or observation of construction, or the construction, of an
improvement to real property more than six years after the substantial completion of such improvement,
for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or construction
of such improvement. . . .
The statute also provides for an additional year to bring claims if the defect is discovered or injury occurs in
the sixth year. See NRS 11.205(3) (repealed 1983).

2
NRS 11.204(1) provides, in pertinent part:
No action may be commenced against the owner, occupier or any person performing or furnishing the
design, planning, supervision or observation of construction, or the construction, of an improvement to
real property more than 8 years after the substantial completion of such an improvement, for the recovery
of damages for:
(a) Any latent deficiency in the design, planning, supervision or observation of construction of such
an improvement. . . .
104 Nev. 392, 394 (1988) Lavery v. Wolden
We reject that contention. However, Wolden alternatively asserts that because NRS 11.205
was found to be unconstitutional, the only available statute applicable was the statute of
limitations for written contracts, NRS 11.190, which provides for a six-year period of
limitations.
3
We agree.
The statute of limitations for written contracts, NRS 11.190, had run prior to the filing of
Laverys' complaint. The Laverys' suit was not timely filed; therefore, their claims are barred.
The judgment is reversed.
____________________

3
NRS 11.190 provides, in pertinent part:
Actions other than those for the recovery of real property, unless further limited by statute, can only be
commenced as follows:
1. Within 6 years:
. . . .
(b) An action upon a contract, obligation or liability founded upon an instrument in writing. . . .
The statute for written contracts would apply because the Laverys alleged a breach of the construction
contract and it was the only applicable statute of limitations during the gap between the State Farm
decision and the lapsing of the Laverys' cause of action. State Farm was decided on March 31, 1983. 99
Nev. at 222.
____________
104 Nev. 394, 394 (1988) Fremont Hotel v. Esposito
FREMONT HOTEL AND CASINO, Appellant, v. EVELYN ESPOSITO, NEVADA
EMPLOYMENT SECURITY DEPARTMENT, STATE OF NEVADA, BOARD OF
REVIEW, Respondents.
No. 18375
August 25, 1988 760 P.2d 122
Appeal from district court order reversing Board of Review of Nevada Employment
Security Department. Eighth Judicial District Court, Clark County; Donald M. Mosley,
Judge.
Employee was terminated for alleged misconduct, i.e., refusing to consent to an
immediate drug and alcohol examination. The Employment Security Department Board of
Review concluded that employee was ineligible for unemployment benefits, and employee
petitioned for review. The district court reversed the Board's decision, and Board appealed.
The Supreme Court held that evidence supported the Board's determination that employee's
refusal to submit to the drug and alcohol test, which test was provided for in a
union-employer contract, constituted misconduct.
Reversed.
104 Nev. 394, 395 (1988) Fremont Hotel v. Esposito
Smith & Kotchka, Scott Scherer, and David A. Hintzman, Las Vegas, for Appellant.
Jon L. Sasser, Carson City, Justin Clouser, Las Vegas, and Crowell, Susich, Owen &
Tackes, Carson City, for Respondents.
1. Social Security and Public Welfare.
Misconduct, for purposes of denial of unemployment benefits, may be established by deliberate
violation or disregard on part of employee of standard of behavior which employer has right to expect.
NRS 612.385.
2. Social Security and Public Welfare.
Evidence supported conclusion that employee had been terminated for misconduct, where
union-employer contract allowed employer to subject employees to drug and alcohol examinations,
employee was asked to take immediate drug and alcohol test after employer became reasonably suspicious
that she was under influence, and employee refused and was terminated, despite employee's claim that she
cut her fingers the day before termination, was unable to sleep from time of accident until time she reported
for work, and was under influence of prescribed medication at time of employer's request. NRS 612.385.
OPINION
Per Curiam:
Evelyn Esposito, respondent, was employed as a cocktail waitress by the Fremont Hotel
and Casino (Fremont) in Las Vegas, Nevada, on February 17, 1977. On August 2, 1985, she
was terminated for alleged misconduct, i.e. refusing to consent to an immediate drug and
alcohol examination.
Ms. Esposito applied for unemployment benefits, and the Nevada Employment Security
Department representative, finding no misconduct on her part, concluded that she was
eligible. Fremont appealed that determination, and after an evidentiary hearing the appeals
referee affirmed the decision of the department.
Fremont appealed from the referee's decision to the Board of Review. The Board of
Review concluded that Ms. Esposito had no compelling need to refuse Fremont's request that
she be tested for drugs and alcohol. The Board of Review reversed the referee, and concluded
that Ms. Esposito was ineligible for unemployment benefits.
Ms. Esposito petitioned the district court for judicial review of the board's decision, and
the district court concluded that the board's decision, finding misconduct, was arbitrary and
capricious because the decision was not supported by substantial evidence.
104 Nev. 394, 396 (1988) Fremont Hotel v. Esposito
Ms. Esposito testified that on August 1, 1985, the day before her termination, she had
accidentally cut her fingers, and as a result was in pain and sick to her stomach. As a result,
she maintains that she was unable to sleep from the time of the accident until she was
expected to report for work at 6:00 p.m. on August 2, 1985. Ms. Esposito stated that at 1:00
p.m. on August 2, she called her bar manager at the Fremont to report that she was too ill to
work as a result of this accident and the prescribed sleep medication which she had recently
taken. She was told by the bar manager that she was needed and should report to work, and
she complied.
Ms. Esposito's actions were observed during the first 35 minutes of her shift. She was
described by Fremont personnel as groggy, disoriented, light-headed, and glassy-eyed. Ms.
Esposito, herself, claims that she passed out. Her condition was observed by a security guard,
the shift supervisor, the casino supervisor, and the assistant general manager of the Fremont.
When confronted by the assistant general manager, Mr. Collins, Ms. Esposito explained
that she had injured her hand and had taken several prescribed medications. Mr. Collins then
explained to her that she was suspected of being under the influence, and he asked her three
or four times during their conversation to go to the clinic to be tested and clear up these
suspicions. Each time she refused. He explained that is the medications were prescribed and
taken in the prescribed manner, there would be no problem. Refusing this offer to allay
suspicions, Ms. Esposito was discharged. She presented herself to be tested 45 minutes later,
however, but the test was then refused. Upon this record the district court reversed the Board
of Review.
In McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982), we stated:
In reviewing an administrative board's decision, this court, like the district court, is
limited to the record below and to the determination of whether the board acted
arbitrarily or capriciously. The question is whether the board's decision was based on
substantial evidence; neither this court, nor the district court, may substitute its
judgment for the administrator's determination.
(Citations omitted.) In petitions for judicial review, the finding of the board of review as to
the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the
jurisdiction of the court shall be confined to questions of law. NRS 612.530(4).
NRS 612.385 provides:
A person is ineligible for benefits for the week in which he has filed a claim for
benefits, if he was discharged from his last or next to last employment for
misconduct connected with his work, and remains ineligible until he earns
remuneration in covered employment equal to or exceeding his weekly benefit
amount in each of not more than 15 weeks thereafter as determined by the
executive director in each case according to the seriousness of the misconduct.
104 Nev. 394, 397 (1988) Fremont Hotel v. Esposito
last or next to last employment for misconduct connected with his work, and remains
ineligible until he earns remuneration in covered employment equal to or exceeding his
weekly benefit amount in each of not more than 15 weeks thereafter as determined by
the executive director in each case according to the seriousness of the misconduct.
(Emphasis added.)
[Headnote 1]
Misconduct may be established by a deliberate violation or disregard on the part of the
employee of standards of behavior which his employer has the right to expect. Barnum v.
Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968). Misconduct is generally understood as
any improper or wrong conduct. Lellis v. Archie, 89 Nev. 550, 553, 516 P.2d 469, 470-471
(1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 639 (Wis. 1941)).
Ms. Esposito focuses her argument upon what she claims is a lack of wrongfulness in her
actions, and the district court was of the same opinion. However, both this court and the
district court are restricted in the review of the administrative agency proceedings. The
district court does not hold a trial de novo.
When analyzing the concept of misconduct, the trier of fact must consider the legal
definition, Barnum, in context with the factual circumstances surrounding the conduct
at issue. Misconduct then becomes a mixed question of law and fact. Jones v. Rosner,
102 Nev. 215, 719 P.2d 805 (1986). Findings of misconduct must be given deference
similar to findings of fact, when supported by substantial evidence in the lower court.
Id.
Garman, 102 Nev. at 565, 729 P.2d 1336.
Thus, the fundamental issue raised in this appeal is whether the district court erred in
failing to defer to the board's finding of misconduct or, stated otherwise, whether the board's
decision was supported by substantial evidence.
[Headnote 2]
Recently, in Texas Emp. Com'n v. Hughes Drill. Fluids, 746 S.W.2d 796 (Tex.Ct.App.
1988), an employee was discharged for refusing to submit a urine sample for drug screening
purposes as required by company policy. The court held, among other things, that the denial
of unemployment benefits because of the misconduct-related discharge was supported by
substantial evidence. The record did not reflect that the employee ever abused drugs. Hughes
Drill. Fluids, 746 S.W.2d at 801 n.11. In fact, this case suggests that the testing was simply
random screening, and the employee refused to be tested even though he was on notice of
the company policy.
104 Nev. 394, 398 (1988) Fremont Hotel v. Esposito
the employee refused to be tested even though he was on notice of the company policy.
Misconduct is a deliberate violation or disregard on the part of the employee of standards
of behavior which his employer has the right to expect. Barnum, 84 Nev. at 41, 436 P.2d at
222. The parties agree that a union-employer contract exists allowing the employer to subject
employees to drug and alcohol examinations. Ms. Esposito does not contend that she had no
notice of this contract provision. In fact, she was reminded of the provision when asked to be
tested. She said, I'm still not gonna take the test.
The simple facts are that Ms. Esposito was asked to take an immediate drug and alcohol
test after her employer became reasonably suspicious that she was under the influence. She
refused and was terminated for this refusal in accordance with the provision within the
union-employer contract. The employer had the right to expect her to consent to this test.
Thus, her refusal was wrongful. The facts support the board's determination that she was
terminated for misconduct. Therefore, we reverse the order of the district court.
____________
104 Nev. 398, 398 (1988) State v. Stinnett
THE STATE OF NEVADA, Appellant, v. PATRICK
FITZGERALD STINNETT, Respondent.
No. 18386
August 25, 1988 760 P.2d 124
Appeal from order of district court suppressing evidence and granting petition for writ of
habeas corpus. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was arrested and charged with possession of controlled substance with intent to
sell. Following defendant's preliminary hearing, the district court granted defendant's motion
to suppress evidence and also granted defendant's petition for writ of habeas corpus. State
appealed. The Supreme Court concluded that the officer who detained defendant had a
reasonable suspicion that criminal activity was afoot.
Reversed and remanded.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, George Assad,
Deputy District Attorney, and James Tufteland, Deputy District Attorney, Clark County, for
Appellant.
104 Nev. 398, 399 (1988) State v. Stinnett
Morgan D. Harris, Public Defender, and George Franzen, Deputy Public Defender, Clark
County, for Respondent.
1. Arrest.
Unprovoked flight provides sufficient cause to justify investigative stop, and absent hot pursuit, neither
chase nor investigative pursuit need be included in lexicon of Fourth Amendment. U.S.C.A. Const.
Amend. 4.
2. Arrest.
Circumstances leading up to detention of defendant in abandoned residence created reasonable indication
that criminal activity was afoot, for purposes of statute which provided that peace officer could detain
person whom officer encountered under circumstances which reasonably indicated that criminal activity
was afoot, as group of men was huddled together in suspicious manner in front of abandoned residence in
neighborhood known for drug related activity, and upon seeing patrol car, one of men fled without
provocation toward rear of abandoned residence, officer found defendant hiding, huddled in dark closet,
and officer recognized defendant, whom he had arrested before for drug related offenses. NRS 171.123,
subd. 1.
OPINION
Per Curiam:
Patrick Stinnett was arrested and charged with possession of a controlled substance with
intent to sell (NRS 453.337). Following the preliminary hearing, Stinnett moved to suppress
evidence and petitioned for a writ of habeas corpus. Each was granted. We reverse and
remand for further proceedings.
On April 29, 1987, at 5:00 p.m., Officer Kallas of LVMPD and his partner were cruising
in their unmarked patrol car near 1932 Carver Street in Las Vegas. Officer Kallas, a seven
year veteran of the police department, stated that during the three and a half years he had
patrolled that area, the dominant crime problem had been the sale and use of narcotics.
As the officers approached the intersection of Comstock and Carver Streets and began to
turn west onto Carver Street, Officer Kallas observed three to four men huddled in front of
1932 Carver, an abandoned, boarded-up residence. The activity of these men, stated Officer
Kallas, was consistent with street sales of narcotics.
The officers were continuing to drive west on Carver Street when one of the men in the
group, who was black and wearing a blue, long-sleeved shirt, fled toward the back of the
residence. After the man ran, Officer Kallas got out of the car and ran around the block in an
attempt to locate the man who had fled. Not finding the individual on the street, Officer
Kallas climbed the fence behind the abandoned residence.
104 Nev. 398, 400 (1988) State v. Stinnett
the fence behind the abandoned residence. His partner, meanwhile, parked in front of the
home.
Officer Kallas noticed that the rear entrance to the boarded-up residence had been opened,
and after retrieving a flashlight from the patrol car, he entered the building. He directed
anybody in the residence to come out, but there was no response. Searching the building, he
shined his light into a bedroom closet and saw Stinnett huddled in a corner.
Officer Kallas recognized Stinnett, who is black and was wearing a blue, long-sleeved
shirt. He had arrested Stinnett before on drug related charges, and Stinnett had resisted his
previous arrests. With this background in mind, Officer Kallas ordered Stinnett to stand, turn
around, and put his hands behind his back. Stinnett replied, Kallas, let me talk to you for a
minute. To which Officer Kallas responded, No, turn around and put your hands behind
your back. And after I handcuff you, we will go outside and we can talk.
Stinnett's reaction was to resist the detention. He attempted to hit Officer Kallas, and the
two men struggled. Stinnett escaped to the backyard where he was handcuffed. He was then
placed in the patrol car.
Officer Kallas returned to the abandoned residence and found two plastic bags containing
17 rocks of cocaine (3.56 grams) on the closet shelf directly above where Stinnett had been
hiding. Officer Kallas returned to the patrol car and informed Stinnett of his Miranda rights,
whereupon Stinnett said, Kallas, I will give you a dope house and make a buy for you if you
will let me go. I can't afford this on my record.
The district court concluded that Officer Kallas illegally detained Stinnett without a
reasonable suspicion that criminal activity was afoot. Based upon this determination, the
cocaine and Stinnett's statements were suppressed. In the absence of the suppressed evidence,
the petition for writ of habeas corpus was granted.
In Michigan v. Chesternut, U.S. , 108 S.Ct. 1975 (1988), the court considered
the implication of the Fourth Amendment to the police officer's pursuit of Chesternut. The
police officers were on routine patrol in a marked car. Approaching an intersection, the
officers observed another car pull to the curb. A man got out of the car and approached . . .
Chesternut, who was standing alone on the corner. Chesternut, seeing the patrol car, ran. The
officers accelerated to see where he was going. As the officers cruised alongside,
Chesternut dropped several packets. One of the officers examined the packets and, based
upon his experience as a paramedic, believed that the pills in the packets contained codeine.
Chesternut, who was only a few yards away, was then arrested for possession of narcotics.
104 Nev. 398, 401 (1988) State v. Stinnett
yards away, was then arrested for possession of narcotics. Chesternut, U.S. at , 108
S.Ct at 1977.
[Headnote 1]
Initially we note that the concurring opinion concluded that an unprovoked flight provides
sufficient cause to justify an investigative stop, and absent hot pursuit, neither chase' nor
investigative pursuit' need be included in the lexicon of the Fourth Amendment. Chesternut,
U.S. at , 108 S.Ct at 1981 (Kennedy, J., concurring). We agree.
[Headnote 2]
Insofar as Stinnett's flight was unprovoked, this case is indistinguishable from Chesternut,
and the actions of the police officers were justified. We point out, however, that the actions of
the police in this case were not justified by Stinnett's unprovoked flight alone; however, the
determination of which additional circumstances may have justified the actions of the police
depends upon when the seizure occurred. Obviously, once an individual is seized, no
subsequent events or circumstances can retroactively justify the seizure.
The Supreme Court has clearly set forth and embraced the test to be applied in determining
whether a seizure has occurred. The test provides that the police can be said to have seized
an individual only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.' Chesternut, U.S.
at , 108 S.Ct. at 1979 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
The Chesternut court concluded that a reasonable person would have concluded that he
was free to leave when the patrol car quickly caught up with and cruised alongside
Chesternut. Chesternut, U.S. at , 108 S.Ct. at 1980. Clearly, Stinnett was not seized
when Officer Kallas got out of the patrol car and ran around the corner to see where the
fleeing man had gone. Stinnett fled prior to Officer Kallas' pursuit and then hid within the
abandoned building. There is no indicia in the record that Stinnett was actually aware that
Officer Kallas had followed him. Thus, a reasonable person could not have perceived a
restraint upon his liberty until he was confronted in the closet of the abandoned building, at
which point Stinnett, using physical force, attempted to flee again.
We hold that the circumstances leading up to the detention in the abandoned residence
created a reasonable indication that criminal activity was afoot.
1
The men were in a
neighborhood that was known for drug related activity.
____________________

1
NRS 171.123(1) provides:
1. Any peace officer may detain any person whom the officer
104 Nev. 398, 402 (1988) State v. Stinnett
that was known for drug related activity. They were huddled together in a suspicious manner
in front of an abandoned residence. Upon seeing the patrol car, one of the men fled without
provocation toward the rear of the abandoned residence. The residence, which was otherwise
boarded-up, was open at the rear entrance. The officer found Stinnett hiding, huddled in a
dark closet, and he recognized Stinnett, whom he had arrested before for drug related
offenses.
We are satisfied that the actions of the police were justified. We, therefore, hold that the
district court erred in suppressing the evidence and in granting Stinnett's petition for writ of
habeas corpus. Accordingly, we reverse and remand for further proceedings.
____________________
encounters under circumstances which reasonably indicate that the person has committed, is committing
or is about to commit a crime.
____________
104 Nev. 402, 402 (1988) Saveway v. Cafferata
SAVEWAY SUPER SERVICE STATIONS, INC., a Nevada Corporation, Appellant, v.
PATRICIA CAFFERATA, Treasurer of the State of Nevada, Respondent.
No. 18436
August 25, 1988 760 P.2d 127
Appeal from order of district court granting motion for summary judgment. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Taxpayer brought action against State Treasurer to recover excise fuel tax paid under
protest. The district court entered summary judgment for State Treasurer, and taxpayer
appealed. The Supreme Court held that substantial evidence test applicable in action for
judicial review of agency decision did not apply.
Reversed and remanded.
Donald L. Wood, Las Vegas, for Appellant.
Brian McKay, Attorney General, and Michael Dougherty, Deputy Attorney General,
Carson City, for Respondent.
1. Taxation.
Taxpayer's burden of proof in action to recover taxes paid under protest was not that of showing lack of
substantial evidence for Tax Commission's decision, but rather, to support elements of independent action
for restitution. NRS 233B.010 et seq., 233B.130, 365.330, 365.340, 365.460.
104 Nev. 402, 403 (1988) Saveway v. Cafferata
2. Taxation.
Substantial evidence test applicable in action for judicial review of agency decision did not apply in
taxpayer's equitable action against State Treasurer for refund of excise fuel tax paid under protest; instead,
trial de novo was required. NRS 233B.010 et seq., 233B.130, 365.330, 365.340, 365.460.
OPINION
Per Curiam:
Saveway Super Service Station, Inc. (Saveway) is a licensed dealer in motor vehicle fuels
in Nevada and is subject to a state fuel tax. This case arises from two separate alleged
delinquent tax payments made by Saveway. The alleged violations concern the tax payments
for the months of December 1981 and January 1983. In each instance the tax payment was
filed and payment, by check, was enclosed prior to the prescribed deadline. Each check,
however, was dishonored by the drawee bank, and final payment was not received until after
the deadline.
In consequence of these alleged late payments, the Nevada Department of Taxation added
interest and loss of discount to Saveway's fuel tax liability. See NRS 365.330, NRS
365.340. Saveway contends that both checks were wrongfully dishonored as there were
sufficient funds on deposit at the bank to honor both checks upon their initial presentment for
payment.
1

This matter was last before us in February 1985. At that time, Saveway was appealing
from a judgment entered in the Eighth Judicial District Court dismissing Saveway's complaint
for lack of subject matter jurisdiction. Under the provisions of the Administrative Procedure
Act (NRS 233B.130), Saveway had sought judicial review of the Nevada Tax Commission's
order requiring Saveway to pay $23,709.14 for loss of discount and interest.
2
In our order
dismissing Saveway's previous appeal, we stated that NRS 233B.130 is specifically limited
by NRS 365.460, and under NRS 365.460 Saveway's remedy was to pay the excise tax under
protest and bring an action against the state treasurer in the district court in Carson City
to recover the amount paid under protest.
____________________

1
Nev. Admin. Code 365.030, relating to dishonored checks, provides:
1. Except as provided in subsection 2, a check which was tendered within the due date prescribed by
law but subsequently dishonored after the due date does not constitute timely payment.
2. If the check was not honored through the fault or error of the banking institution and the taxpayer
can provide evidence to this effect, the payment will be considered made on the date tendered.

2
Distributors who timely file monthly tax returns are entitled to a 2% discount, but delinquent filers forfeit
that discount. See State ex rel. Tax Comm'n v. Saveway, 99 Nev. 626, 668 P.2d 291 (1983).
104 Nev. 402, 404 (1988) Saveway v. Cafferata
protest and bring an action against the state treasurer in the district court in Carson City to
recover the amount paid under protest. Saveway has since taken that course of action, and the
First Judicial District Court granted respondent's cross-motion for summary judgment,
finding that the decision of the Nevada Tax Commission was neither clearly erroneous,
arbitrary, nor capricious.
[Headnotes 1, 2]
Saveway appeals, alleging that the district court action was brought pursuant to NRS
365.460 as an action for the refund of a tax overpayment, not a complaint for judicial review.
3
Therefore, Saveway argues that the district court erred in applying such standards of review
to an independent action. Respondent's only argument for the application of the substantial
evidence test is that judicial review, as opposed to a trial de novo, would promote judicial
economy. Respondent cites Nevada Power Company v. Public Serv. Comm'n, 91 Nev. 816,
544 P.2d 428 (1975), and No. Las Vegas v. Pub. Serv. Comm'n, 83 Nev. 278, 429 P.2d 66
(1967), in support of this position. However, none of the cases cited by respondent involves a
suit for a tax refund. While respondent may be correct in arguing that judicial review would
promote judicial economy, such a rule is best left in the hands of the state legislature.
In State, Nev. Tax Comm'n v. Obexer & Son, 99 Nev. 233, 237, 660 P.2d 981, 984 (1983),
we stated: Actions to recover taxes paid are equitable in nature, and the burden of proof is
on the taxpayer to show that the taxing body holds money that in equity and good conscience
it has no right to retain. The plaintiff must establish his right to the money in the defendant's
possession. Id.; see also Honeywell, Inc. v. State Bd. of Equalization, 180 Cal.Rptr. 479 at
481 (Cal.Ct.App. 1982). The burden of proof, so articulated, certainly implies that the burden
is not that of showing a lack of substantial evidence, rather, it is to support the elements of an
independent action for restitution.
4
People v. Sonleitner, S Cal.Rptr.
____________________

3
NRS 365.460 provides:
After payment of any excise tax under protest duly verified, served on the department, and setting
forth the grounds of objection to the legality of the excise tax, the dealer paying the excise tax may bring
an action against the state treasurer in the district court in and for Carson City for the recovery of the
excise tax so paid under protest.

4
We note, in addition, that NRS 365.460 requires that the action be brought against the state treasurer, who
was not an immediate party to the administrative proceedings. In fact, the tax commission is not a party to the
subsequent claim for restitution. This point is obviously more compatible with a construction that the statute
allows an independent action against the holder of overpaid tax.
104 Nev. 402, 405 (1988) Saveway v. Cafferata
Sonleitner, 8 Cal.Rptr. 528, 539 (Cal.Ct.App. 1960); Marchica v. State Board of
Equalization, 237 P.2d 725 (Cal.Ct.App. 1951).
We conclude that the district court erred in applying standards of judicial review properly
applied to appeals from administrative decisions. NRS 365.460 states that the taxpayer may
bring the action to recover taxes illegally assessed. This statute is not found within the
Administrative Procedure Act,
5
and authority from other jurisdictions supports Saveway's
contention that the statute gives the taxpayer a right to bring an independent action for
restitution. Accordingly, we reverse and remand.
____________________

5
It is clear that this standard is applied in appeals from administrative decisions where the appeal to the
district court is brought pursuant to the Administrative Procedure Act.
____________
104 Nev. 405, 405 (1988) State v. Wilson
THE STATE OF NEVADA, Appellant, v.
ROBERT LEE WILSON, Respondent.
No. 18467
August 25, 1988 760 P.2d 129
Appeal from order of district court vacating respondent's conviction and dismissing the
charges. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Following jury's verdict of guilty on two counts of making false claims for insurance
benefits and one count of conspiracy to present such claims, the district court dismissed
charges against defendant for insufficiency of evidence. State appealed. The Supreme Court
held that district court could not dismiss criminal charges after verdict, but was limited to
giving jury advisory instruction to acquit or ordering new trial.
Reversed and remanded.
Brian McKay, Attorney General, Carson City; Gregory J. Barlow, Deputy Attorney
General, Las Vegas, for Appellant.
Morgan Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Clark County, for Respondent.
1. Criminal Law.
Determination of sufficiency of evidence, following guilty verdict, is to be resolved as issue of law on
appeal.
2. Criminal Law.
District court may not dismiss criminal charge for insufficiency of evidence following jury verdict
of guilty, but may only give jury advisory instruction to acquit or order new trial.
104 Nev. 405, 406 (1988) State v. Wilson
evidence following jury verdict of guilty, but may only give jury advisory instruction to acquit or order new
trial. NRS 175.381, 177.025; Const. art. 6, 4.
OPINION
Per Curiam:
The issue raised in this appeal is whether the district courts of Nevada have the authority
to dismiss criminal charges for insufficiency of the evidence following a jury verdict of
guilty. We conclude that they do not and, therefore, reverse and remand to the district court so
that it may consider respondent's motion for a new trial.
Robert Lee Wilson, respondent, was charged with two counts of making false claims for
insurance benefits and one count of conspiracy to present such claims.
On June 11, 1987, Wilson filed a motion to suppress in-court identifications and dismiss
the charges. An evidentiary hearing was requested and scheduled to be heard on the day of the
trial. On June 29, 1987, prior to the start of the jury trial, the motion to suppress was
considered by the trial court. The judge concluded that the jury should determine whether the
identifications were sufficient to support a conviction, and he denied the motion.
At no time prior to the submission of the case to the jury did Wilson move for a directed
verdict, acquittal, or an advisory instruction to acquit. Following guilty verdicts on each
count, Wilson moved for a new trial or a dismissal of charges on the ground of insufficiency
of the evidence, specifically, unreliability of the in-court identifications.
The court granted the motion to dismiss, stating that it would appear to the Court that this
is not the kind of evidence upon which a jury can reasonably find proof of guilt beyond a
reasonable doubt.
It was solely to the in-court identification that the claim of insufficiency was addressed.
Numerous witnesses worked for State Farm, Farmers, or Allstate Insurance when the alleged
fraud occurred, and most of them identified respondent as one of the people involved in the
scheme. They testified that he represented himself either as Robert Wilson, the insured, or
Bill Winslow, a claimant. The claim of insufficiency stems not from failure of the witnesses
to identify respondent but rather from the alleged taint of pretrial photo-identifications.
No Nevada statute or rule of procedure is specifically directed to the district court's power
in criminal cases, following the jury's verdict of guilty, to dismiss the charges, acquit the
defendant, or enter a judgment notwithstanding the verdict when the court deems the
evidence insufficient to sustain the verdict.
104 Nev. 405, 407 (1988) State v. Wilson
ant, or enter a judgment notwithstanding the verdict when the court deems the evidence
insufficient to sustain the verdict. A related statute, NRS 175.381, provides:
If, at any time after the evidence on either side is closed, the court deems the evidence
insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but
the jury is not bound by such advice.
In State v. Corinblit, 72 Nev. 202, 205, 298 P.2d 470, 471 (1956), we held that it was error
for the trial court to take the case from the jury by dismissing the action at the close of the
prosecution's case in lieu of giving the jury an advisory instruction to acquit because of
insufficient evidence which instruction the jury could freely ignore.
1

In State v. Busscher, 81 Nev. 587, 589, 407 P.2d 715, 716 (1965), a case involving the
propriety of the district court's order granting the defendant's motion for a new trial, we stated
the district court may grant a motion for a new trial following a guilty verdict where the court
finds the evidence in conflict and disagrees with the jury's resolution.
2

[Headnote 1]
In Washington v. State, 98 Nev. 601, 604, 655 P.2d 531, 532 (1982), we stated that a
defendant is not subjected to double jeopardy when he is granted a new trial because the trial
judge disagrees with the jury's resolution of conflicting evidence. In dicta, we went on to
state, however, that when the evidence is insufficient to support the conviction, the defendant
may not be retried. We take this opportunity to clarify the dicta in Washington to the extent
that it implies that the district court may dismiss the charges for insufficiency of the evidence
following a guilty verdict. White it is clear that a defendant cannot be retried when the
evidence presented is insufficient to sustain a guilty verdict, in Nevada the determination of
the sufficiency of the evidence, following a guilty verdict, is to be resolved as an issue of law
on appeal.
____________________

1
That holding was based on N.C.L. 11001 (1929) which was similar in substance to NRS 175.381.

2
The district court's ruling in Busscher was based upon former NRS 175.535(6) (1965) which provided that
the district court could grant a new trial [w]hen the verdict is contrary to law or evidence. . . . A new trial is
presently authorized under NRS 176.515. NRS 176.515(4) states that such a motion may be based upon other
grounds, and other grounds' exist when the district court disagrees with the jury's verdict after an independent
evaluation of the evidence. Washington v. State, 98 Nev. 601, 603, 655 P.2d 531, 532 (1982).
104 Nev. 405, 408 (1988) State v. Wilson
Some states have concluded that trial courts had the power at common law to dismiss
following a guilty verdict, Ex Parte United States, 101 F.2d 870, 877, 131 A.L.R. 176, 184
(7th Cir. 1939),
3
or possessed such inherent power to do justice, Ex Parte United States;
Arizona v. Superior Court in and for Co. of Maricopa, 441 P.2d 548 (Ariz. 1968).
4
Other
courts have criticized these conclusions, finding no power at common law or inherent power
in the trial courts. Oregon v. Schwabe, 556 P.2d 1366 (Or. 1976); Pennsylvania v. Heller, 24
A.2d 460 (Pa. 1942).
Those courts which have concluded that the power to dismiss after a guilty verdict existed
at common law have based their decisions upon hypothetical reservations of rulings on
motions for directed verdicts. We need not consider this rationale. In Nevada, the power to
direct the verdict because of insufficiency of the evidence does not exist prior to the
submission of the case to the jury. NRS 175.381; Corinblit, 72 Nev. 202, 205, 298 P.2d 470,
471 (1956). A fortiori the power cannot be reserved until after the jury returns its verdict if
the power has been eliminated by the legislature.
[Headnote 2]
While Ex Parte United States and Arizona v. Superior Court in and for Co. of Maricopa
relied in large part upon the inherent powers and obligations of the courts to protect the
innocent, we hold that the district court's power is limited to giving an advisory instruction or
ordering a new trial. The post-verdict ruling on the sufficiency of the evidence can be
addressed by the supreme court on appeal. Schwabe, 556 P.2d 1366 (Or. 1976); Heller, 24
A.2d 460 (Pa. 1942). This procedure is consistent with Nev. Const. art. VI 4 and NRS
177.025 and accomplishes the ends of justice without circumventing the limitations placed
upon the district courts through NRS 175.381.
Accordingly, we reverse and remand for the district court's consideration of respondent's
motion for a new trial.
____________________

3
Ex Parte United States was decided prior to the adoption of the Federal Rules of Criminal Procedure of
which Rule 29 sanctions the practice of acquittal or judgment notwithstanding the jury's guilty verdict.

4
Arizona Rule of Criminal Procedure 20 currently provides for motions for judgment of acquittal before
verdict which may be renewed after verdict.
____________
104 Nev. 409, 409 (1988) Jackson v. State
KAREN L. JACKSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 18470
August 25, 1988 760 P.2d 131
Appeal from a judgment of conviction of one count of battery with a deadly weapon.
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
Defendant was convicted of one count of battery with a deadly weapon in the district court
and she appealed. The Supreme Court held that district court improperly limited defense
counsel's cross-examination regarding witness' civil suit against defendant.
Reversed and remanded.
Frank J. Cremen, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City, Rex Bell, District Attorney, James
Tufteland, Deputy, Ronald C. Bloxham, Deputy, Clark County, for Respondent.
1. Witnesses.
Trial court abused its discretion by limiting defense counsel's cross-examination of witness regarding that
witness' civil suit against defendant.
2. Criminal Law.
Error in limiting defense counsel's cross-examination of witness' bias was not harmless where issue of
defendant's guilt or innocence was close, witness' testimony was important to outcome, and defendant was
charged with serious offense.
3. Witnesses.
Defense was entitled to cross-examination prosecution witness regarding that witness' civil suit against
defendant regardless of whether civil complaint was in evidence.
OPINION
Per Curiam:
Sometime during the afternoon of May 19, 1984, appellant Karen Jackson shot and injured
Thomas Pinsonault. A jury found appellant guilty of one count of battery with the use of a
deadly weapon, and the district court sentenced appellant to a term of five years in the
Nevada State Prison. The district court suspended the sentence, however, and placed
appellant on probation for an indefinite term not to exceed five years. This appeal followed.
104 Nev. 409, 410 (1988) Jackson v. State
Appellant's and Pinsonault's versions of the events leading up to the shooting vary
considerably. According to Pinsonault, he did not have a key to the apartment that he and
appellant were sharing because his and appellant's work schedules were such that appellant
was usually home when Pinsonault needed to enter the apartment. If, by chance, appellant
was not home when Pinsonault arrived at the apartment, Pinsonault would enter through the
bedroom window.
1
On May 18, 1984, the day before the shooting, Pinsonault twice went to
the apartment to see appellant. On the first visit, approximately 5:00 p.m., Pinsonault gave
appellant $80.00 toward the $89.00 weekly rent and told her that he would return later in the
evening with the remainder of the rent money. Pinsonault then returned to the apartment at
approximately 11:00 p.m. to leave his car so that appellant could take it to work the next day.
Pinsonault testified that during this second visit, appellant demanded that Pinsonault stay the
night. The couple then argued; Pinsonault threw a plate against the refrigerator and left the
apartment. Pinsonault arrived at his mother's house around midnight intending to spend the
night.
Pinsonault testified that approximately one hour after he arrived at his mother's house, he
received a call from appellant. Appellant allegedly told Pinsonault that if he did not return to
the apartment immediately, she would go to the police and file a battery complaint against
him. Appellant called once again and made the same threat. Pinsonault's mother confirmed
that appellant called twice during the early morning hours of May 19, 1984. Pinsonault did
admit on cross-examination, however, that he had never told anyone about these telephone
calls nor had he testified to these calls in the prior two trials in this matter.
The next day, the day of the shooting, Pinsonault testified that he went to the apartment at
about 1:00 p.m. to get his work clothes, pay appellant the remainder of the rent money, and
ask appellant if she wanted to play pinball. Pinsonault knocked on the door and received no
answer. After returning to his car to obtain additional money for the rent payment, Pinsonault
returned to the apartment and climbed in through the bedroom window. When Pinsonault
stepped down from the window, he heard appellant call his name. Pinsonault turned and saw
appellant standing in the bedroom doorway with a gun in her hand. After appellant asked
Pinsonault to leave, Pinsonault turned around to climb out the window. Appellant then fired
two shots at Pinsonault hitting him once in the back. Pinsonault testified that as a result of his
wound, he spent almost three months in a hospital and remained in a wheelchair for a year.
____________________

1
If the window was locked, Pinsonault would jimmy the lock.
104 Nev. 409, 411 (1988) Jackson v. State
Appellant, on the other hand, related the following version of the events. Two or three
weeks prior to the shooting, Pinsonault had beaten her, so she had told Pinsonault that she
wanted nothing more to do with him. For that reason, Pinsonault was not living in the
apartment at the time of the shooting. On May 18, 1984, Pinsonault came over at
approximately 5:00 p.m. to see if she wanted to play pinball. Before they could leave the
apartment complex, however, the couple argued over a marijuana cigarette that Pinsonault
had left at the apartment. Appellant had flushed the cigarette down the toilet and Pinsonault
was angry. Because of the argument, Pinsonault squealed off in his car. Pinsonault later
returned to the apartment at approximately 1:00 a.m. on May 19, 1984. Appellant attempted
to keep Pinsonault out of the apartment but Pinsonault forced open the door, cutting
appellant's toe. Pinsonault, still angry about the marijuana cigarette, began to assault her.
Pinsonault hit appellant, kicked her, and threw a plate at her. When Pinsonault left, appellant
called her parents. Appellant's parents persuaded her to file a police report concerning the
incident, and her father gave her a gun for protection.
Appellant stayed home from work on May 19, 1984. Around 3:00 p.m., she heard a knock
at her door. Still upset over the previous night's events, she decided not to answer the door. A
short time later, appellant heard a noise coming from her bedroom. Appellant, carrying the
gun, looked in the bedroom and saw Pinsonault standing by the window with a copy of the
police report in his hand. Pinsonault was very angry, and he lunged at her. Appellant, fearing
for her life, closed her eyes and twice fired the gun hitting Pinsonault once in the back.
Several other witnesses testified in addition to appellant and Pinsonault. Joseph Matvay,
an identification specialist with the Las Vegas Metropolitan Police Department (Metro),
testified that he examined the apartment after the shooting. Matvay found fragments of a
broken plate in the bedroom and hallway. Matvay found appellant's fingerprints on a fragment
of the plate. Matvay also found on the bed a copy of the police report that appellant had
made. Metro officer Charles Jones testified that he was responding to the scene of the
shooting when appellant's mother flagged him down. Appellant's mother reported that
appellant had shot someone. Appellant and her father then drove up to Officer Jones' location.
After being advised of her rights, appellant told Officer Jones that she had shot Pinsonault
once in the back and that she hoped he would not die. Finally, appellant's mother testified that
she had received a call from appellant during the early morning hours of May 19, 1984. After
appellant explained to her parents that Pinsonault had beaten her, her parents drove her to the
police station to file a report.
104 Nev. 409, 412 (1988) Jackson v. State
her to the police station to file a report. Appellant's mother had noticed some bruises and a cut
toenail on appellant when she arrived that morning.
[Headnote 1]
At trial, during recross-examination of Pinsonault, defense counsel asked Pinsonault if he
had initiated a civil lawsuit against appellant and her parents. The district court sustained the
prosecutor's objection that the question was beyond the scope of redirect examination.
2
Appellant argues on appeal that the district court improperly limited her cross-examination of
Pinsonault. Specifically, appellant maintains that the district court erroneously prohibited her
from exploring a potential financial interest or bias on the part of Pinsonault, i.e., his lawsuit
against her and her parents.
A district court's discretion to curtail cross-examination into a witness's possible bias is
limited. See Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984). Counsel must be permitted to
elicit any facts which might color that witness's testimony. Id. at 45, 675 P.2d at 991. It
cannot be disputed that Pinsonault's civil lawsuit against appellant and her parents has a direct
bearing on Pinsonault's interest in the outcome of the criminal case. See State v. Rammel, 721
P.2d 498 (Utah 1986); State v. Burris, 643 P.2d 8 (Ariz.Ct.App. 1982). Consequently, we
conclude that the district court abused its discretion by precluding defense counsel from
questioning Pinsonault about the civil lawsuit.
[Headnotes 2, 3]
The state maintains that any error in this regard is harmless. We disagree. In determining
whether the error is harmless, we must consider whether the issue of guilt or innocence is
close, the quantity and character of the evidence, and the gravity of the offense charged. See
Big Pond v. State, 101 Nev. 1, 692 P.2d 1288 (1985). Clearly, the question of appellant's guilt
was close; a previous trial in this matter ended in a mistrial after the jury became deadlocked.
The evidence consisted primarily of the conflicting testimony given by appellant and
Pinsonault. In addition, Pinsonault's testimony was devoid of any reference to the late night
threatening phone calls allegedly made by appellant until the instant trial, which took place
after Pinsonault had filed his civil lawsuit.
____________________

2
Our review of the record reveals that, although defense counsel attempted to explore Pinsonault's bias on
recross-examination, such examination was, in effect, cross-examination. We reach this conclusion because the
district court had earlier granted the state's motion to reopen its direct examination. Thus, the state's examination
of Pinsonault on redirect was in the nature of a direct examination. Defense counsel was justified, therefore, in
attempting to question Pinsonault regarding his potential for bias on recross-examination.
104 Nev. 409, 413 (1988) Jackson v. State
his civil lawsuit. The existence of the civil lawsuit could provide a motive for any
unexplained embellishments in Pinsonault's prior accounts of the events. Finally, the fact that
the district court may have properly refused to admit the civil complaint as evidence has no
bearing on whether cross-examination of Pinsonault was improperly limited. Defense counsel
was entitled to explore Pinsonault's potential biases separate and apart from the introduction
of the civil complaint. Consequently, in the context of this case, we cannot conclude that the
error was harmless.
Our disposition of this issue renders it unnecessary to discuss appellant's remaining
assignment of error. For the foregoing reasons, we reverse the judgment of conviction and
remand the case for further proceedings consistent with this opinion.
____________
104 Nev. 413, 413 (1988) Elley v. Stephens
BRADLEY P. ELLEY and LINDA D. ELLEY, Appellants, v. E. DUANE STEPHENS and
PATRICIA M. STEPHENS, COUNTY OF WASHOE, Respondents.
No. 18086
August 25, 1988 760 P.2d 768
Appeal from summary judgment. Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Purchasers of prefabricated house sued original owners and county for injuries sustained in
fall from deck. The district court granted original owners' and county's motions for summary
judgment, and purchasers appealed. The Supreme Court held that: (1) purchasers lacked
standing to challenge constitutionality of statute of repose; (2) statute of repose barred actions
against county; (3) original owners of house were not strictly liable; and (4) purchasers did
not present genuine issue of fact on willful misconduct allegation.
Affirmed.
D. G. Menchetti, Incline Village; Cartwright, Sucherman and Slobodin, San Francisco,
California, for Appellants.
Erickson, Thorpe, Swainston and Cobb, Reno; Mills Lane, District Attorney, and Thomas
F. Riley, Deputy, Washoe County, for Respondents.
1. Constitutional Law.
Plaintiffs who did not personally suffer injury that could be fairly traced to allegedly unconstitutional
statute which would be redressed by invalidating statute limiting actions against owner,
occupier, or person involved in construction of property more than ten years earlier
did not have standing to challenge constitutionality of statute.
104 Nev. 413, 414 (1988) Elley v. Stephens
invalidating statute limiting actions against owner, occupier, or person involved in construction of property
more than ten years earlier did not have standing to challenge constitutionality of statute. NRS 11.203.
2. Constitutional Law.
Plaintiffs who were not injured as result of statute's underinclusiveness, were not members of class
excluded from protection afforded by statute of repose, and would not benefit from statute with broader
reach lacked necessary nexus between injury and constitutional violation to make them proper party to
challenge constitutionality of statute of repose on equal protection grounds. NRS 11.203;
U.S.C.A.Const. Amend. 14.
3. Counties.
Court could conclude that language of statute which protected any person performing
. . . supervision or observation of construction included county officials conducting postconstructive
inspections and barred suit against them after ten years. U.S.C.A.Const. Amend. 14; NRS 11.203,
11.205.
4. Products Liability.
Even if prefabricated house was product subject to law of strict products liability, strict liability theory
would not apply to occasional seller of house who did not sell house in regular course of business.
5. Counties; Judgment; Vendor and Purchaser.
Purchasers who presented no evidence that sellers of house or county inspectors engaged in willful
misconduct did not raise a material issue of fact about willful misconduct and could not avoid ten-year
statutory limitation barring cause of action against sellers and county inspectors. NRS 11.202, 11.203.
OPINION
Per Curiam:
THE FACTS
Duane and Patricia Stephens owned a vacant lot at Incline Village, upon which they
intended to build a vacation home. They met with an Incline Village contractor, who provide
them with several models of prefab houses. The Stephenses selected one and had the
contractor build or assemble the prefab house, including the deck and railing. The house was
the first the Stephenses had built.
Although their vacation house was completed in 1973, the Stephenses never lived in it,
and that same year they sold it to a Robert and Muriel Hall. In June, 1985, the appellants,
Bradley and Linda Elley, purchased the house.
1
A month later, Bradley Elley fell over or
through the railing of the house's deck, suffering injury. The Elleys sued the Stephenses and
Washoe County, alleging the following five causes of action: (1) strict products liability, (2)
breach of implied warranty, (3) negligence, (4) negligent inspection, and (5) willful
misconduct. The Elleys sought relief form the Stephenses through all causes of action
except negligent inspection; they sought relief from Washoe County through causes of
action four and five.
____________________

1
We were informed, at oral argument, that as many as four intervening owners may have purchased the house
before the Elleys.
104 Nev. 413, 415 (1988) Elley v. Stephens
sought relief form the Stephenses through all causes of action except negligent inspection;
they sought relief from Washoe County through causes of action four and five.
Respondents filed motions for summary judgment, which the district court granted. The
Elleys appeal.
DISCUSSION
The house, including deck and railing, was finished in 1973. Twelve years later, Mr. Elley
suffered his injuries and, thereafter, filed his action, alleging that the Stephenses' and County
inspectors' negligence caused his injury. This district court concluded that the negligence and
negligent inspection claims were barred by the NRS 11.203 ten-year statute of repose, and
that the Elleys did not have standing to challenge its constitutionality. We agree.
NRS 11.203 requires that a personal injury action against an owner or person constructing
a house be brought within ten years of completion of the house if the injury results from a
known construction deficiency. The Elleys argue, however, that NRS 11.203 does not bar
their lawsuit because the statute is unconstitutional, violating the equal protection clause.
In State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983), we held that the
then-existing NRS 11.205 violated the equal protection clause of the United States
Constitution. At the time, the statute read as follows:
1. No action in tort, contract or otherwise shall be commenced against any person
performing or furnishing the design, planning, supervision or observation of
construction, or the construction, of an improvement to real property more than 6 years
after the substantial completion of such an improvement, for the recovery of damages
for:
(a) Any deficiency in the design, planning, supervision or observation of
construction or construction of such an improvement; or
. . . .
(c) Injury to or wrongful death of a person caused by any such deficiency.
We concluded that this statute violated the equal protection clause because it arbitrarily
protected architects and contractors from actions arising after the statute had run, but left
exposed others similarly situated, such as owners and manufacturers of supplies. State Farm,
99 Nev. at 226-29, 660 P.2d at 997-1000.
After State Farm, the legislature revised NRS 11.205, adding two previously excluded
classes in an attempt to remedy the constitutional defect, and enacted NRS 11.203. NRS
11.203 provides: [N]o action may be commenced against the owner, occupier or any
person performing or furnishing the design, planning, supervision or observation of
construction, or the construction of an improvement to real property more than 10 years
after the substantial completion of such an improvement, for the recovery of damages for:
104 Nev. 413, 416 (1988) Elley v. Stephens
[N]o action may be commenced against the owner, occupier or any person performing
or furnishing the design, planning, supervision or observation of construction, or the
construction of an improvement to real property more than 10 years after the substantial
completion of such an improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of
construction or the construction of such an improvement which is known or through the
use of reasonable diligence should have been known to him;
. . . .
(c) Injury to or the wrongful death of a person caused by any such deficiency.
NRS 11.203 (emphasis added). The Elleys argue that these changes are not sufficient to avoid
the problem noted in State Farm, and that NRS 11.203 violates the equal protection clause.
[Headnote 1]
Even assuming, arguendo, that NRS 11.203 is unconstitutionally underinclusive, as
appellants contend, the district court correctly determined that the Elleys do not have standing
to challenge its constitutionality. In the context of an action of the type here present, a
requirement of standing is that the litigant personally suffer injury that can be fairly traced to
the allegedly unconstitutional statute and which would be redressed by invalidating the
statute. Valley Forge Christian College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472 (1982).
[Headnote 2]
In an irrelevant sense, the Elleys are injured by the workings of NRS 11.203. Their lawsuit
against the County is barred because of the operation of that statute. Moreover, if we were to
grant the remedy they seek and strike the statute, their injuries would, in a sense, be redressed.
Importantly, however, the Elley's injuries are not a result of the statute's underinclusiveness.
The Elleys are not members of one of the classes who are excluded from the protection
afforded by the statute of repose, and who would benefit from a statute with broader reach. If
the statute were totally inclusive, as they argue it need be, they would still be barred from
bringing their action. Accordingly, they are merely remote parties who are looking for some
wayany wayto avoid the application of the statute of repose in order to circumvent
summary judgment. However, their injuries have nothing to do with the statute's alleged
unconstitutionality, and therefore, the necessary nexus between injury and constitutional
violation is missing. As a result, appellants are asserting someone else's potential legal
problem; they are not the proper party to assert this alleged constitutional violation.
104 Nev. 413, 417 (1988) Elley v. Stephens
potential legal problem; they are not the proper party to assert this alleged constitutional
violation. The district court, therefore, correctly determined that the Elleys did not have
standing.
[Headnote 3]
Appellants contend that even if they do not have standing to challenge the constitutionality
of NRS 11.203, and even if NRS 11.203 does not violate the equal protection clause, NRS
11.203 does not apply to their causes of action against the County. They argue that if the
legislature intended County inspectors, as well as owners, occupiers, etc., to fall within the
statute's reach, it would have expressly so provided. The district court concluded, however,
that by using the language any person performing . . . supervision or observation of
construction, the legislature intended to also cover County officials conducting
post-constructive inspections. In so concluding, the court did not err.
The legislative history preceding enactment of NRS 11.203 does not specifically indicate
whether the legislature intended to cover County inspectors in the statute. However, the
legislative history does suggest that when the legislature enacted the revised statute of repose,
they intended it to be as broad as possible so that it would not again be found
unconstitutional. The limited history available suggests that some of the members of the
legislature understood that the revised statutes were intended to be as broad as possible in
their coverage. Accordingly, by interpreting the language any person . . . performing . . .
supervision or observation of construction to cover County building inspectors, the district
court was in accord with legislative intent, to the extent it can be discerned. Therefore, the
district court correctly concluded that NRS 11.203 barred the Elleys' negligent inspection
cause of action against the County.
The Elleys also argue that the district court improperly dismissed their strict product
liability action against the Stephenses. The district court concluded:
The claims which the plaintiffs assert against these moving defendants cannot be
sustained under the color of a strict products liability or breach of warranty cause of
action. Given the nature of the defendant's activity, I am of the opinion that this cause
of action is more appropriately founded in negligence. . . .
Appellants argue that the district court erred because the Stephenses are retail sellers of a
product, and therefore a strict liability action can be maintained against them.
[Headnote 4]
We have held that an end user of a product has established a cause of action in strict
liability against a manufacturer or distributor when "his injury is caused by a defect in the
product, and [the user proves] that such defect existed when the product left the hands of
the defendant."
104 Nev. 413, 418 (1988) Elley v. Stephens
utor when his injury is caused by a defect in the product, and [the user proves] that such
defect existed when the product left the hands of the defendant. Shoshone Coca-Cola
Bottling v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 858 (1966). However, even if we
assumed, arguendo, that a prefab house is a product subject to the law of strict products
liability,
2
a strict liability theory is not applicable to an occasional seller of a product, who
does not, in the regular course of his business, sell such a product. See, e.g., Restatement
(Second) of Torts 402(a) (1965);
3
Prosser and Keaton on Torts 705 (5th ed. 1984) (Only
a seller who can be regarded as a merchant or one engaged in the business of supplying goods
of the kind involved in the case is subject to strict liability, whether on warranty or in tort.);
Bailey v. ITT Grinnell Corp., 536 F.Supp. 84, 87 (N.D. Ohio 1982) ([S]trict tort liability is
not an appropriate theory of liability for application to the occasional seller); Lemley v. J &
B. Tire Co., 426 F.Supp. 1376, 1377 (W.D. Penn. 1977) (The plaintiffs cannot prevail on
their [strict liability cause of action] because the defendants . . . are not sellers engaged in the
business of selling such a product.).
The Stephenses are unquestionably occasional sellers, hardly qualifying as retailers or
manufacturers of homes. Strict liability theory does not apply to such sellers. Therefore, the
district court's conclusion that the Elleys, as a matter of law, could not maintain a strict
liability cause of action against the Stephenses was not erroneous.
[Headnote 5]
Finally, the Elleys claim that the district court erred by dismissing their causes of action
alleging that the Stephenses and County were guilty of willful misconduct.
____________________

2
Courts are divided about whether a home is a product under strict liability theory. Annotation, Recovery,
Under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or Land, 25 A.L.R.4th 351
(1983).

3
Restatement (Second) of Torts 402(A)(1) provides:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer
or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer
. . . if
(a) the seller is engaged in the business of selling such a product. . . .
Comment (f) to 402(A) notes:
The rule stated in this section . . . does not, however, apply to the occasional seller of . . . products who is
not engaged in that activity as part of his business. Thus it does not apply to the housewife who, on one
occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an
automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars. . . . [H]e
is not liable to a third person, or even to his buyer, in the absence of his negligence.
104 Nev. 413, 419 (1988) Elley v. Stephens
County were guilty of willful misconduct. They argue that NRS 11.2024 generally provides
that actions for injuries resulting from willful misconduct can be brought at any time, and that
accordingly, this cause of action would not be barred by NRS 11.203. However, in order to
avoid summary judgment, the Elleys needed to show that a material issue of fact existed
about willful misconduct. The record reveals no evidence supporting appellants' allegations
that the Stephenses or the County engaged in willful misconduct. Accordingly, the district
court did not err by dismissing these causes of action on summary judgment.
For the reasons noted above, and after consideration of all arguments presented, we affirm
the judgment of the district court.
____________________

4
NRS 11.202 provides:
1. An action may be commenced against the owner, occupier or any person performing or furnishing
a design, planning, supervision or observation of construction, or the construction of an improvement to
real property at any time after the substantial completion of such an improvement, for the recovery of
damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or the
construction of such an improvement which is the result of his willful misconduct or which he
fraudulently concealed:
. . . .
(c) Injury or the wrongful death of a person caused by any such deficiency.
____________
104 Nev. 419, 419 (1988) Scott L., A Minor v. State
SCOTT L., A Minor, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18541
August 25, 1988 760 P.2d 134
Appeal from an order of commitment, committing appellant to Spring Mountain Youth
Camp. Eighth Judicial District Court, Juvenile Division, Clark County; John S. McGroarty,
Judge.
Following juvenile's delinquency adjudication for distribution of marijuana, the district
court sentenced defendant to punitive disposition. On appeal, the Supreme Court, Springer, J.,
held that: (1) deterrence effect of the sentence on others was a sufficient reason to depart from
normal presumption to place child in his home; (2) judge did not have a fixed disposition or
policy to sentence juveniles to punitive disposition; (3) juvenile's punitive disposition to
youth camp was justified by circumstances; (4) juvenile could be sentenced to youth camp
because he deserved it; and (5) incarceration at camp was in juvenile's best interests.
Affirmed.
104 Nev. 419, 420 (1988) Scott L., A Minor v. State
H. Leon Simon, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Timothy
O'Brien, Deputy District Attorney, Clark County, for Respondent.
1. Infants.
In determining whether incarceration of a juvenile defendant was appropriate, deterrent effect of the
incarceration on other juveniles was a sufficient reason to depart from the presumption that a child should
be placed in his home and not in a corrective institution.
2. Infants.
Juvenile judge's statement, that approximately every one of children who had been involved in high
school drug trafficking had been placed in confinement, did not demonstrate a fixed disposition or policy
on the judge's part to unnecessarily sentence punitive disposition.
3. Infants.
Juvenile's punitive disposition to youth camp was justified by circumstances; juvenile's heavy
involvement in sale of marijuana to other juveniles, prior juvenile record for possession of weapon, need
for deterrence, and principle of just deserts supported the disposition.
4. Criminal Law.
Criminal offender may be punished because he deserves it; retribution and just deserts are not archaic or
inappropriate reasons for punishment.
5. Infants.
Infant deserved to be placed in youth camp following his delinquency adjudication for distribution of
marijuana; infant's deep involvement in drug trafficking to minors, prior illegal weapons charge, and
disciplinary record in school supported the punitive disposition.
6. Infants.
Incarceration of juvenile, convicted of distributing marijuana to other juveniles, in youth camp was in the
juvenile's best interests; camp's educational, rehabilitative and treatment programs, as well as punishment's
value as a rehabilitative tool, demonstrated the propriety of the punitive disposition.
OPINION
By the Court, Springer, J.:
Appellant Scott L., a sixteen-year-old high school student, was heavily involved in the sale
of marijuana to his fellow students. Following a sale of marijuana to an undercover drug
enforcement agent the minor was adjudicated a delinquent and committed by the juvenile
court to the Spring Mountain Youth Camp, a place of involuntary confinement and punitive
incarceration. See Glenda Kay S., A Minor v. State, 103 Nev. 53, 732 P.2d 1356 (1987). The
sole reason given by the presiding juvenile court judge for such disposition was the
"deterrent effect" of incarcerating a youthful drug dealer.
104 Nev. 419, 421 (1988) Scott L., A Minor v. State
judge for such disposition was the deterrent effect of incarcerating a youthful drug dealer.
We approve of the juvenile court's decision in this case and affirm its dispositional order.
[Headnote 1]
The juvenile court judge wisely and properly (See Glenda Kay) stated in open court his
reasons for ordering this punitive disposition, namely, that [t]here is a deterrent effect by
incarcerating a youth who engages in the sale of marijuana to other minors. Said the judge:
When children sell [drugs] to children, the other children in the community are watching,
all right. There is a deterrent effect by incarcerating. . . .
. . . .
[B]y removal from the community, removing them from their friends, kids talk, they
know who is gone, they know who is back in the community. . . .
[I]t is in the public's interest to institutionalize this young man for at least the first
semester of the school year, because I believe very strongly that it is in order to deter
them or others.
[Headnote 2]
The minor claims, citing Glenda Kay, above, that there is not in this case sufficient
reason to depart from the presumption that a child should be placed in his home and to put
him in confinement.
1

We deem the deterrence of others from engaging in drug sales in our schools to be
sufficient reason to incarcerate a youth adjudged guilty of such criminal conduct, and we
see the juvenile court as having acted in an eminently wise and prudent manner in deciding
upon this disposition. See Glenda Kay.
[Headnote 3]
Factors other than deterrence present themselves in justification of the juvenile court's
removal of Scott from the community and his commitment to Spring Mountain.
____________________

1
The minor also claims that the juvenile court judge erred by acting upon a self-imposed policy of sending
all children who commit such acts to an institution, with rare exception. The judge did observe that
approximately every one of those children who were involved in high school drug trafficking had been sent
away. This observation does not show a fixed predisposition or policy on the judge's part. For this reason and
because appellant has cited no authority to support this claim of error, we decline to consider the point.
Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (1978). We do note with some chagrin that appellant's counsel
has misstated the record to us, saying that the Judge stated on the record, I think on its own merits, he would
have probably been sent home on probation by itself.' The judge did not say this; Scott's mother did.
104 Nev. 419, 422 (1988) Scott L., A Minor v. State
and his commitment to Spring Mountain. In Glenda Kay we noted that the integrity of the
criminal law is maintained by seeing to it that those who commit crimes are punished. We
noted also that punitive incarceration may be justified in juvenile cases for serious criminal
violations because the youthful offender deserves to be punished.
To permit Scott to remain at home and escape any appreciable punitive sanction for so
serious a crime would tend to be destructive of the integrity of the criminal law.
2
When the
law is broken something must be done about it. The law must be vindicated; otherwise, it
loses its meaning and effect as law. Scott is described in the record as a middleman in drug
sales among high school students. If such a person can be adjudged guilty of drug sales in
the schools and escape any punitive sanction, the law and its moral force are indeed in
jeopardy. To maintain the integrity of our drug laws some punishment must follow, as it did
here, from the violation of these laws.
[Headnotes 4, 5]
We also mentioned in Glenda Kay that a criminal offender may be punished because he
deserves it. Retribution or just deserts as a response to criminal law violation is though by
many jurists and social theorists to be archaic and inappropriate. We disagree. Although the
juvenile court judge has in the present case eschewed the use of punishment as punishment in
a juvenile court case, reason tells us that the juvenile court's decision to incarcerate could well
have been grounded on the fact that Scott deserved to be punished. He has a previous juvenile
record (carrying an illegal weapon). He was deeply involved in drug trafficking to minors. He
was a disciplinary problem in school. It is hard to argue that Scott did not deserve to be
removed from his home and school environment and confined in a youth camp. This is little
enough punishment for a crime calling for a life sentence. NRS 423.321.
[Headnote 6]
Finally, the record would support a conclusion by the juvenile court that the best interests
of Scott would be served by this disposition. Spring Mountain has a regular high school
educational program conducted by the Clark County School District and offers several
treatment and rehabilitation programs likely to be of benefit to Scott.
____________________

2
It used to be argued that marijuana is not a dangerous drug and should not be legally banned. In today's
drug-ridden society this argument is not often heard, and Nevada's legislature has inscribed a law which attaches
life imprisonment as a penalty for the sale or distribution of this drug. NRS 453.321. The people of this state
have spoken through their elected representatives in such a manner as to obviate any discussion of the degree of
culpability attached to this crime. The minor, in his brief, concedes that this is indeed, a serious crime.
104 Nev. 419, 423 (1988) Scott L., A Minor v. State
and offers several treatment and rehabilitation programs likely to be of benefit to Scott. Also
we must not ignore the value of punishment itself as a rehabilitative tool. Using punishment
as a means for changing youthful behavior is not exactly a new phenomenon; and,
punishment must be recognized as a valid and useful rehabilitative tool. This court has
recognized that punishment has in many cases a rehabilitative effect on the child and . . . will
serve the child's best interests as well as the state's. In the Matter of Seven Minors, 99 Nev.
427, 664 P.2d 947 (1983).
Enforcing the state's interests in a manner designed to hold juveniles responsible for
their violations of the criminal laws need not by any means dilute the strength of
educative and rehabilitative measures properly taken by the juvenile courts in
attempting to socialize and civilize errant youth. Guidance, understanding and care still
have the same place in juvenile court proceedings. Even youths who commit more
serious crimes can profit from a separation from adult offenders and from the special
treatment and special programs which are available in juvenile courts; this does not
mean that they should go unpunished.
Seven Minors, 99 Nev. at 432, 664 P.2d at 951.
In Seven Minors we recognized the beneficence and utility of educative and rehabilitative
measures properly taken by the juvenile court, but noted firmly that the court's duty to the
public is paramount. The juvenile court judge in the present case was correct in declaring
that it was in the public's interest to institutionalize this young man, focusing on the
deterrent effect that this disposition would have on others.
All in all the paramount public interest purposes of the juvenile courts appear to have
been optimally served by the juvenile court judge's decision to institutionalize this young
man for purposes of deterrence. As stated above, other public interests are also served as are
the interests of the delinquent. The juvenile judge in this case, the Honorable John S.
McGroarty, had every justification for deciding as he did. We affirm the order of
commitment.
Gunderson, C. J., and Steffen, Young, and Mowbray, JJ., concur.
___________
104 Nev. 424, 424 (1988) Judas Priest v. District Court
JUDAS PRIEST, GLENN TIPTON, ROBERT HALFORD, IAN HILL, KENNETH K.
DOWNING, BETAGLEN LIMITED, BETAGLOW LIMITED, BETAGRANGE LIMITED,
BETAGREEN LIMITED, Petitioners, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA; and the HONORABLE JERRY CARR WHITEHEAD, District
Judge, Respondents, JAMES VANCE, EMITT J.R. VANCE, PHYLLIS VANCE,
AUNETTA ROBERSON, Natural Parent of RAYMOND EUGENE BELKNAP, an
Individual; and AUNETTA ROBERSON, the Special Administrator of the Estate of
RAYMOND EUGENE BELKNAP, Real Parties in Interest.
No. 18967
August 25, 1988 760 P.2d 137
Original petition for writ of prohibition or mandamus.
Action was brought alleging British rock band's album directly caused suicidal actions of
two youths, which resulted in death of one youth and serious injury to other youth. Rock band
members, who were British residents, and their British corporations petitioned for writ
prohibiting district court from asserting in personam jurisdiction over them. The Supreme
Court held that: (1) band members and their corporations were subject to personal jurisdiction
for having targeted state as market for sales of record albums, and (2) band members and their
corporations were subject to personal jurisdiction in state for having indirectly supplied for
distribution, sale or use product that allegedly caused injury in state.
Writ denied.
Woodburn, Wedge & Jeppson, Suellen Fulstone and Shawn B. Meador, Reno, for
Petitioners.
Hamilton & Lynch, Vivian E. Lynch, Kenneth J. McKenna, Timothy P. Post, and Erickson,
Thorpe, Swainston, Cobb & Lundemo, Reno, for Respondents.
1. Prohibition.
Writ of prohibition is appropriate remedy to challenge district court's refusal to quash service of process.
NRS 34.320.
2. Courts.
Creator of product is subject to personal jurisdiction where product is sold, so long as he is aware of and
used national distribution system to make sale, even though product passes through middleman; test is
whether creator has targeted forum state for marketing his product, thereby purposely availing himself of
benefits of forum. NRS 14.065, subd. 2(a), 14.080; U.S.C.A.Const. Amends. 5, 14.
104 Nev. 424, 425 (1988) Judas Priest v. District Court
3. Corporations; Courts.
Rock band members, who were British residents, and their British corporations had targeted forum state
as market for sales of band's album and were thus subject to personal jurisdiction in action alleging album
directly caused youths' suicidal actions, which resulted in death of one youth and critical injury to other
youth; band had entered into licensing agreement with American agent for express purpose of distributing
and selling copies of album throughout United States and had made two concert appearances in state,
presumably to promote album sales and increase its following. NRS 14.065, subd. 2(a); U.S.C.A.Const.
Amends. 5, 14.
4. Corporations; Courts.
Rock band members, who were British residents, and their British corporations indirectly supplied for
distribution, sale or use albums that allegedly caused injury and were thus subject to personal jurisdiction
in state in action alleging album directly caused suicidal actions of two youths, which resulted in death of
one youth and serious injury to another. NRS 14.080; U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
In the early evening hours of December 23, 1985, Raymond Belknap and James Vance
took a sawed-off shotgun to an empty churchyard. They made their way to the children's play
area and sat down. Raymond Belknap anchored the gun beneath his chin, pulled the trigger,
and thus ended his short life. James Vance also shot himself, but survived with critical
injuries.
Lawsuits were soon filed against the petitioners and others by Vance and by Belknap's
mother, claiming that the Judas Priest album Stained Class had directly caused their
suicidal actions. Petitioners herein, the individual members of Judas Priest and their
corporations,
1
have requested that we prohibit the district court from asserting in personam
jurisdiction over them. For the reasons expressed in this opinion, we deny the writ.
[Headnotes 1-4]
A writ of prohibition is the appropriate remedy to challenge the district court's refusal to
quash service of process. Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982); NRS
34.320. Under the circumstances of this case, however, we do not believe the district court
exceeded its jurisdiction in refusing to quash service of process on the petitioners. A court
may assert jurisdiction if there is a statutory basis for that assertion which does not contravene
the due process clause of the United States Constitution. Keeton v. Hustler Magazine, Inc.,
465 U.S. 770. 774 (1984). Respondents have claimed, and petitioners have denied, that
jurisdiction may be asserted under two Nevada statutes, NRS 14.065{a) and NRS 14.0S0.
____________________

1
The individual petitioners are residents of Great Britain, and the corporate petitioners are British
corporations.
104 Nev. 424, 426 (1988) Judas Priest v. District Court
that jurisdiction may be asserted under two Nevada statutes, NRS 14.065(a) and NRS 14.080.
NRS 14.065(a) provides that any person who transacts business within Nevada submits
himself to the jurisdiction of Nevada courts, even if he acts through an agent; NRS 14.080
allows for service of process on any corporation which directly or indirectly supplies a
product for distribution, sale or use when an injury results from such activity in the state. In
our opinion, either statute allows the assertion of jurisdiction in this case.
We have held that the Nevada long-arm statutes reach the limits of due process set by the
Constitution. Certain-Teed Prods. v. Dist. Ct., 87 Nev. 18, 479 P.2d 781 (1971). Due process
requires minimum contacts between the defendant and the forum state; additionally, the
exercise of jurisdiction must be reasonable. See Asahi Metal Industry Co. v. Superior Court,
480 U.S. 102 (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Internat. Shoe Co. v. Washington, 326
U.S. 310 (1945). Because we conclude that Judas Priest has established minimum contacts
with Nevada, and that it is reasonable to assert jurisdiction in this case, we decline to grant
the writ of prohibition requested by the petitioners.
Judas Priest created and recorded the master album of Stained Class, and entered into a
licensing agreement with CBS Records, Inc. for the express purpose of distributing and
selling copies of the album throughout the United States. The creator of a product is subject
to personal jurisdiction where his product is sold if he is aware of and uses a national
distribution system to make the sale. Myers v. Johns Manville Sales Corp., 600 F.Supp. 977
(D.Nev. 1984). Jurisdiction is not destroyed simply because the product passes through a
middleman. Le Manufacture Francaise v. District Court, 620 P.2d 1040 (Colo. 1980). The test
is whether the defendant has targeted the forum state for marketing his product, thereby
purposefully availing himself of the benefits of the forum. Taubler v. Giraud, 655 F.2d 991
(9th Cir. 1981); Hanson v. Denckla, 357 U.S. 235 (1958). In addition to the licensing
agreement, which requires the payment of royalties to Judas Priest for each album sold, we
note that the band has made two concert appearances in the state of Nevada, presumably to
promote sales and increase its following. In our opinion, this activity is sufficient to show that
Judas Priest has targeted Nevada as a market for sales of its products, and has thereby availed
itself of the benefits of the forum.
2
The exercise of jurisdiction in this case is not
unreasonable, because the state has a strong interest in protecting its citizens from
personal injury.
____________________

2
We also note that petitioners indirectly supplied a product for distribution, sale or use which allegedly
caused an injury in this state. This is sufficient for jurisdiction under NRS 14.080.
104 Nev. 424, 427 (1988) Judas Priest v. District Court
The exercise of jurisdiction in this case is not unreasonable, because the state has a strong
interest in protecting its citizens from personal injury. Calder v. Jones, 465 U.S. 783 (1984).
Furthermore, the only alternative forum available to the plaintiffs would be the courts of
England. An overseas lawsuit is admittedly expensive and burdensome. While it is true that
the members of Judas Priest will now be forced to defend a lawsuit in a country distant from
their own, it is more equitable to place such a burden on them, and not the plaintiffs, because
the band members consciously and deliberately chose to develop a worldwide market.
We are satisfied that the district court did not err by asserting in personam jurisdiction
over the petitioners herein. We therefore deny the petition, and affirm the jurisdiction of the
district court. Of course, in so doing, we are concerned only with the issue of jurisdiction, and
we do not reach any question related to the merits of the cause of action respondents have
attempted to allege.
____________
104 Nev. 427, 427 (1988) Lane v. District Court
MILLS LANE, District Attorney for Washoe County, Petitioner, v. SECOND JUDICIAL
DISTRICT COURT, WASHOE COUNTY, THE HONORABLE ROBERT L.
SCHOUWEILER, District Judge, and THE HONORABLE ROBIN WRIGHT, District
Judge, Respondents.
No. 18768
August 29, 1988 760 P.2d 1245
Original proceeding in prohibition; petition for reconsideration or rehearing of order
denying extraordinary relief.
District attorney filed an original petition for a writ of prohibition to challenge an order
enjoining the district attorney from proceeding further with a criminal matter and designating
an investigator to evaluate a case for possible resubmission to the grand jury. After denial of
extraordinary relief, the district attorney petitioned for reconsideration or rehearing. The
Supreme Court, Springer, J., held that the district attorney was entitled to notice and an
opportunity to be heard before appointment of an investigator or special prosecutor to
evaluate a case for possible resubmission to the grand jury, as it was not clear from the record
whether the district attorney was a blameworthy participant in alleged misconduct by the
deputy district attorney in presenting a rape case to the original grand jury.
Rehearing granted; writ granted.
104 Nev. 427, 428 (1988) Lane v. District Court
Gunderson, C. J., concurring and dissenting.
Mills Lane, District Attorney, and Gregory R. Shannon, Deputy District Attorney, Washoe
County, for Petitioner.
Hon. Robert L. Schouweiler, District Judge, Second Judicial District Court, Washoe
County, for Respondents.
Criminal Law.
District attorney was entitled to notice and opportunity to be heard before appointment of investigator or
special prosecutor to evaluate case for possible resubmission to grand jury; it was not clear from record
that district attorney was blameworthy participant in alleged improprieties of deputy district attorney in
presenting rape case to original grand jury.
OPINION
By the Court, Springer, J.:
This original petition for a writ of prohibition challenges an order of the district court
enjoining the Washoe County District Attorney from proceeding further with a criminal
matter, and designating an investigator or so-called special prosecutor to evaluate the case
for possible resubmission to the grand jury. On February 22, 1988, this court entered an order
denying extraordinary relief, concluding that petitioner failed to demonstrate that the
respondent district court acted arbitrarily or capriciously in the exercise of its discretion, or
that it otherwise exceeded its jurisdiction. Petitioner has now petitioned for rehearing or
reconsideration of our order, contending that this court overlooked two material matters and
requesting further consideration of an argument previously raised. The petition for rehearing
is opposed. Upon thorough review of the contentions of the parties, and of the record now
before us, we conclude:
(1) The district attorney is inappropriately seeking to raise points never properly raised by
his original petition to this court, and to reargue points fully considered in our original order;
(2) In any case, the district attorney is incorrect in his contention that he is vested with the
sole right to control the processes of the grand jury, to the exclusion of District Court Judge
Robert L. Schouweiler, who impaneled the grand jury, and to the exclusion of Chief Judge
Robin A. Wright, who joined with Judge Schouweiler in entering the order challenged in
these proceedings;
(3) The respondent judges' determination is well founded that complaints tendered to the
district court by victims of alleged sexual assaults, and by two investigating officers of the
Washoe County Sheriff's Department, warrant judicial inquiry, by virtue of the following:
104 Nev. 427, 429 (1988) Lane v. District Court
sexual assaults, and by two investigating officers of the Washoe County Sheriff's Department,
warrant judicial inquiry, by virtue of the following:
(a) The record reflects without contradiction that the district attorney's deputy who
presented the case to the grand jury did so in a manner that, as a natural consequence,
precluded the grand jury from knowing about or considering the testimony of the
investigatory officers;
(b) In presenting the case to the grand jury, the district attorney's deputy also
depreciated the prosecution's case by multiple violations before the grand jury of
Nevada's rape shield law, NRS 50.090 and 48.069; and
(c) The district attorney's deputy depreciated and prejudiced the prosecution's case
by the introduction of hearsay testimony which, as a natural and apparently intended
consequence, diminished the credibility of the complaining witnesses.
Nonetheless, in our view, an inference does not inexorably follow that the district attorney
himself, Mills Lane, was a blameworthy participant in the prosecutorial omissions mentioned
above. Consequently, before the respondent judges took action to appoint a special
investigator or prosecutor to collect further data in the district attorney's place and stead, we
believe they should have accorded the district attorney notice and an opportunity to be heard
concerning the prior failures of the prosecution and as to whether the district attorney's office
will proceed properly with the case in the future. Although petitioner's claim that he did not
receive proper notice has been raised belatedly, for the first time on rehearing, we have
considered the matter in the interests of reaching a correct and speedy disposition.
Accordingly, we grant rehearing and a writ of prohibition directing that the inquiry ordered
below shall not proceed until a hearing on notice to the district attorney has been conducted
before the district court, affording the district attorney an opportunity to be heard as aforesaid.
FACTS
In the early morning hours of February 22, 1986, two young women, referred to hereafter
as Jane and Mary, visited Nye Hall, a coeducational dormitory on the campus of the
University of Nevada at Reno (UNR).
1
During that visit, four young men, three of whom are
members of the UNR football team, allegedly engaged in nonconsensual sexual acts with the
young women.
____________________

1
These are fictitious names assigned to them for purposes of this opinion.
104 Nev. 427, 430 (1988) Lane v. District Court
Jane and Mary did not immediately complain to the police. Several days after the incident,
however, Jane allegedly continued to experience pelvic pain. Both women then visited the
hospital and were examined by physicians. The police were notified of the incident at this
time. Washoe County Sheriff's Deputies Putnam and Jenkins assisted the university police in
investigating the complaints of the two women. The officers took statements from the four
suspects involved, administered certain tests, and recorded the results of these tests and
interviews. As a result of their investigation, it appears that the officers obtained certain data,
some of which they regarded as admissions or confessions.
2

Following their investigation, the officers felt that the evidence, including the confessions
or admissions, justified charges against the men for sexual assault. The officers' supervisor
agreed, and the evidence was submitted to the Washoe County District Attorney for
presentation to the grand jury.
The deputy district attorney scheduled grand jury time for this presentation on two dates,
March 26, 1986, and April 10, 1986, to accommodate all witnesses whose testimony he felt
would be necessary to present. The proposed indictments of the suspects, however, listed only
four witnessesthe complainants and two friends of the suspects. The investigating officers
were not listed as witnesses, although they were subpoenaed to testify.
According to the grand jury transcript of March 26th, at the outset of the presentation of
evidence, the deputy district attorney told the grand jurors, [t]his is . . . a rather unusual
proceeding in that we anticipate a break . . . and I think you will see why that break is
necessary. He then presented to the grand jury the testimony of the two alleged victims, after
which he requested that the grand jurors take a break. Following this break, the deputy district
attorney called Roe, a friend of the suspects, to testify. This witness, a fellow member of
the UNR football team, testified that he had spent the weekend in question out of town and
that he had learned about the incident from others during the following week. He then
indicated to the grand jurors his opinion, based on a conversation with Mary and their past
relationship, that Mary had in fact consented to the sexual acts of which she later complained:
DEPUTY D.A.: After the police talked to you, [Mary] called you?
ROE: That night she called me saying . . . she felt she owed me an explanation of
what had happened. I told her she didn't owe me anything.
____________________

2
Although the district attorney represents that this data did not constitute admissions or confessions, he has
not tendered to this court for evaluation any of the data compiled by the officers.
104 Nev. 427, 431 (1988) Lane v. District Court
didn't owe me anything. And I did inquire about it, asked her Why are you guys lying
about this and trying to get . . . all them in trouble?
DEPUTY D.A.: What did she say?
ROE: She said itI said Why are you lying about and saying they raped you? Was
my direct statement. She said They did not rape us. I feel they took advantage of us.
DEPUTY D.A.: They took advantage of us?
ROE: That is what she said.
DEPUTY D.A.: Did you have any other discussion with either [Jane] or [Mary]
about this situation?
ROE: No, I have not.
DEPUTY D.A.: You haven't had any other meetings with [Mary] on any subject.
ROE: No. But when I asked her on the phone, I asked her Why are you lying about
this and trying to get them in trouble? She wouldn't answer me. I felt, you know
DEPUTY D.A.: That is when she said They were taking advantage of us?
ROE: Yeah. In my mind I felt that, you know, I knew there wasn't any wrongdoing.
DEPUTY D.A.: How did you know?
ROE: From
DEPUTY D.A.: The way you feel?
ROE: My feelings there wasn't any wrongdoings. From my past experiences with
[Mary], I know how she is and I didn't want to further the conversation any.
Following this testimony, the deputy district attorney indicated to the grand jurors that no
more time was scheduled on that day for their consideration of the case:
Mr. Foreman, looking at the schedule we have gone way beyond our allotted time.
There are several other witnesses who have been subpoenaed to testify and I would
leave it to the Grand Jury to decide whether you want to deliberate at this point in time
to the conclusion of a no true bill or true bill or desire to hear those other witnesses who
will be made available to you in two weeks.
The transcript indicates that the grand jury then met privately to consider whether to proceed.
The deputy district attorney then stated for the record:
Before we proceed, Mr. Foreman, you asked the reporter and I [sic] to leave the room at
the end of the last witness' testimony when we indicated we were pretty much out of
time. You have since asked me to have Mr. [Doe] who was here present and ready to
testify and you wish to continue with that with our investigation. . . .
104 Nev. 427, 432 (1988) Lane v. District Court
here present and ready to testify and you wish to continue with that with our
investigation. . . .
Accordingly, the deputy district attorney presented Mr. Doe, the last witness endorsed on the
proposed indictment. Doe, a friend of the suspects, testified that he was in the suspects'
dormitory room on the night in question, that the two complainants were apparently
intoxicated, and that he left before the alleged incidents occurred when an argument ensued
between Jane and one of the suspects. The deputy district attorney then permitted this witness
to testify in response to the following questions of a grand juror concerning rumors Doe had
heard about the complainants' reputations, and concerning Doe's belief that the women had
consented to the sexual acts:
A GRAND JUROR: Did you hear any talk that would lead you to any sort of
conclusion in your own mind as to whether either of these girls resisted or didn't want
this to happen?
DOE: No. I did not.
A GRAND JUROR: Did you hear any talk that would indicate that they did want it
to happen?. . .
DOE: Somewhat, because they came around and, you know, it really wasn't any talk,
you know, they wanted to have it, you know. You know. It wasn't a plan. It was nothing
like that. No oneyou know, it wasn't like they wanted it to happen or they didn't want
it to happen. I guess it just happened. It wasn't nothing like that.
A GRAND JUROR: You said [Mary] made a statement to you you didn'tyou
shouldn't mess with the person who gives the best head in Reno?
DOE: Yeah.
A GRAND JUROR: What was your impression about her then I mean?
DOE: I had heard rumors about her.
A GRAND JUROR: Was it just because she was intoxicated, this girl was drunk?
DOE: I just thought she wanted, you know.
A GRAND JUROR: No biggie?
DOE: I didn't think nothing of it. I Just thought they were like that.
DEPUTY D.A.: Did you think it was like a drunk girl talking or being real serious or
what?
DOE: Yeah. I just thought they were like that, the girls were like that period, drunk,
or that is the impression they left me.
104 Nev. 427, 433 (1988) Lane v. District Court
DEPUTY D.A.: You didn't know them before, don't know them since?
DOE: I never knew them. Just their reputation.
A GRAND JUROR: When you talk about their reputation, is this something you had
heard before that evening?
DOE: Oh, I had heard it around last semester about them, you know. But I never
really took it, you know, because I never said anything to them. I just seen them. I never
talked to them.
A GRAND JUROR: Did you hear the reputation around the guys?
DOE: The campus.
A GRAND JUROR: Or was it the campus? I am trying to specify. Was it a mixed
group of females or just males talking?
DOE: It was everyone in Nye. Male and female knew about these girls.
(Emphasis added.) During this testimony, the foreman of the grand jury commented upon the
relevance of the complainants' reputations to the proceeding: Mr. [deputy district attorney], I
don't know, their reputation isn't a factor. Rather than answering the foreman's inquiry, the
deputy district attorney replied only that:
The legal question here today is the strict thing that is laid out in the proposed
Indictment, whether or not on this occasion they had sexual relations with eachthe
individual persons that are named in the particular counts against the will of the woman
and whether that lack of consent was communicated to the perpetrator.
Although the investigating officers had been subpoenaed and were available to testify at
the proceeding, the deputy district attorney then falsely informed the grand jury that I don't
know there are any other witnesses here available to testify, although I do know there are
some that have been proposed by the defendants' attorneys who can bring evidence to the
Grand Jury. The foreman then asked the deputy district attorney if the suspects wished to
testify. In an affidavit submitted to this court in support of the petition for rehearing, the
deputy district attorney states that all four suspects wished to testify and were available.
3
In
contradiction of this, however, the deputy district attorney responded to the foreman's
question as follows:
____________________

3
Specifically, the deputy district attorney avers:
The Grand Jury issued invitations to all four targets to appear and to testify in this proceeding. All
four targets were available at the March 26 hearing and had indicated through their respective counsel
that each
104 Nev. 427, 434 (1988) Lane v. District Court
contradiction of this, however, the deputy district attorney responded to the foreman's
question as follows:
DEPUTY D.A.: They have been invited to testify. One of them has indicated . . . he
does desire to testify. And I am not sure as to any of the other defendants. Whether or
not they testify of course cannot be held against them if they decide not to testify.
Further, when the foreman asked the deputy district attorney whether the suspect who had
indicated he wished to testify was present, the deputy district attorney indicated, I am not
sure. I will check. That suspect, who was not listed on the proposed indictments as an
intended witness, then testified. During the course of the testimony of the suspect relating his
version of the incident in question, the deputy district attorney permitted him to recount to the
grand jury an alleged prior sexual encounter with Jane:
A GRAND JUROR: You said the girls had been there before on other occasions.
Did you and your roommate or any of the other guys have sex with them?
THE WITNESS: I have sir. I had six with [Jane] once, sir, and she gave me oral
copulation one time before because she was on her period.
At no time did the deputy district attorney inform the grand jurors either that the
investigating officers were available to testify or that their investigation generated eight
exhibits.
4
In his affidavit filed in this court, the deputy district attorney explains his reasons
for not calling the officers: [T]he testimony of [this suspect] . . . was not inconsistent with
his statements to law enforcement officers. . . . It was your affiant's intention to present these
witnesses if the targets of the Grand Jury testified inconsistently with the statements they had
given these officers. (This explanation, of course, totally obscures and fails to address the
experienced investigating officers' representations that the statements constituted
incriminating confessions or admissions.) Following presentation of the testimony set forth
above, the deputy district attorney told the grand jury: Again, Mr.
____________________
would testify at either the March 26 hearing or the April 10 hearing and that their testimony would be
consistent with statements given to law enforcement officers.
See paragraph 7, affidavit in support of petition for reconsideration or for rehearing.

4
The deputy district attorney has represented to this court that [t]hese witnesses were available for the Grand
Jury on March 26 and would have been made available to the Grand Jury on April 10. See paragraph 15,
affidavit in support of petition for reconsideration or for rehearing.
104 Nev. 427, 435 (1988) Lane v. District Court
Again, Mr. Foreman, we are severely behind the schedule. I know Miss Zuppan is
going to kill me, but there are other potential witnesses available. I don't know what the
Grand Jury's pleasure is at this point in time. I don't know they are able to testify at this
point.
5

The foreman then requested a moment of privacy with the grand jury, and the deputy district
attorney and the court reporter were excluded from the grand jury room. The transcript of the
grand jury proceeding ends at this point; hence, the record does not support the deputy district
attorney's representation that the grand jury refused to hear more witnesses. Following their
conference, the grand jury returned a no true bill, and thus declined to indict the suspects
based upon the evidence they had heard.
When the sheriff's deputies realized that the grand jury reached its decision without
hearing testimony and other evidence relating to their investigation, they immediately
complained to their supervisor. Eventually, the officers tendered their information to
respondent Judge Schouweiler, who made the officers' complaints known to respondent
Judge Wright.
6
Further, one or both of the two complainants also visited Judge Schouweiler,
and Mary provided him with an affidavit which reflected her belief that there existed
confessions of the suspects which had not been presented to the grand jury. Although Judge
Schouweiler attempted to obtain the transcript of the grand jury proceeding, it was not
delivered to Judge Schouweiler upon his request.
7
Consequently, confronted with the
complaints of the officers and the alleged victims, and unable to review the transcript of
the challenged proceeding, on February 12, 19SS, the respondent judges issued an order
appointing attorney Paul Elcano to collect the data necessary to determine whether
resubmission of the matter to a new grand jury would be appropriate, and restraining the
Washoe County District Attorney from proceeding further in the case due to perceived
irregularities in the presentation of the case to the grand jury.
____________________

5
In paragraph 15 of this affidavit, however, the deputy district attorney states:
That your affiant had had available the testimony of several other witnesses including Sergeant
Richard Putnam and Deputy Gordon Jenkins of the Washoe County Sheriff's Office. It was your affiant's
intention to present these witnesses if the targets of the Grand Jury testified inconsistently with the
statements they had given these officers. These witnesses were available for the Grand Jury on March 26
and would have been made available to the Grand Jury on April 10. These and other witnesses, as well as
the targets, were not sent away until the Grand Jury indicated they were finished with receiving evidence
for the day. Your affiant was further aware that the office of Sergeant Putnam and Deputy Jenkins is in
the courthouse building and that even if the Grand Jury had changed their minds and desired more
witnesses on the 26th and wished to go further behind schedule, they would have been available for
testimony.

6
NRS 172.097(1) provides that [t]he district judge impaneling a grand jury shall supervise its proceedings.
Respondent Schouweiler impaneled and supervised the grand jury that heard this case in 1986. Apparently
because respondent Judge Wright is the present Chief Judge of the Second Judicial District Court, she signed the
order as the person responsible for supervision of the grand jury currently impaneled.

7
The challenged order of the district court recites:
104 Nev. 427, 436 (1988) Lane v. District Court
confronted with the complaints of the officers and the alleged victims, and unable to review
the transcript of the challenged proceeding, on February 12, 1988, the respondent judges
issued an order appointing attorney Paul Elcano to collect the data necessary to determine
whether resubmission of the matter to a new grand jury would be appropriate, and restraining
the Washoe County District Attorney from proceeding further in the case due to perceived
irregularities in the presentation of the case to the grand jury.
Petitioner, Washoe County District Attorney Mills Lane, then filed in this court a petition
for a writ of prohibition, requesting that the respondent district court judges be prohibited
from intervening in the case. The petition was not, however, verified by petitioner Lane or his
deputy. See NRS 34.330 (writ is issued only upon affidavit, on the application of the person
beneficially interested); NRS 15.010(1) (verification by petitioner's attorney appropriate
under certain circumstances). Additionally, the petition was not properly documented with a
copy of the grand jury transcript as required by NRAP 21(a).
8

On February 22, 1988, this court entered an order noting the procedural derelictions and
denying the petition on the merits. Petitioner subsequently filed a petition for reconsideration
or rehearing on February 26, 1988. Prior to the filing of that petition, however, on February
18, 1988, Judge Schouweiler issued a supplemental order in the proceeding below. This
supplemental order is designated sealed, and indicates that the review by respondent Judge
Schouweiler of the grand jury transcript supports his earlier conclusion that a special
investigation is warranted. Specifically, respondent Judge Schouweiler notes in the
supplemental order that the admissions or confessions of the suspect who testified before the
grand jury should have been presented in order to impeach his testimony. Judge Schouweiler
also states that the grand jury transcript does not disclose that the deputy district attorney
informed the grand jury of the existence of the confessions and admissions, or that the
investigating officers were subpoenaed to present them. Thus, respondent Judge Schouweiler
concludes that the transcript fails to support the District Attorney's media allegations that
the confessions were not presented because the Grand Jury told the District Attorney it
did not want to hear any more testimony."
____________________
The Court ten (10) days ago, requested that Judith Ann Schonlau provide the Court with a transcript of
the Grand Jury proceedings, conveying to her the urgency of the request and the need for prompt action
on her part. The Court has still not received the transcript.
Thus, although some 22 months had elapsed following the hearing, ten days after the demand by the district
court the transcript had not been supplied.

8
NRAP 21(a) requires that petitions for extraordinary relief be accompanied by copies of any order or
opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition.
104 Nev. 427, 437 (1988) Lane v. District Court
District Attorney's media allegations that the confessions were not presented because the
Grand Jury told the District Attorney it did not want to hear any more testimony. Judge
Schouweiler also opines that one inference that can be drawn is that the District Attorney did
not want to present the confessions and took several opportunities to suggest to the Grand
Jury that it begin deliberating. The district judge further notes in this order that the transcript
reveals violations of Nevada's rape shield law, see NRS 48.069 and 50.090, during the grand
jury proceeding.
9

SUPERVISION OF GRAND JURY
In his original petition for extraordinary relief, petitioner primarily contended that the
district court's order violated the doctrine of separation of powers. Specifically, petitioner
contended that only he, as the representative of the executive branch of the government, may
conduct prosecutions on behalf of the people, and that, therefore, the challenged order
constituted an unconstitutional infringement of the judiciary on executive powers. In
rejecting this contention, this court noted that the office of the district attorney is not an office
created by the Nevada State Constitution. Rather, the district attorney's duties and powers are
prescribed by the legislature and are statutorily defined in NRS 252.110. Consequently, we
concluded that the doctrine of separation of powers is inapplicable.
Further, we noted that control of the grand jury's functions is not vested in the district
attorney or his office and that the grand jury should function independently of the
prosecution. The grand jury performs as an adjunct to the judicial branch of the government
and, as such, is not integrated within the executive branch. Significantly, NRS 172.097(1)
expressly provides that [t]he district judge impaneling a grand jury shall supervise its
proceedings. See also NRS 172.047. Thus, our order concluded that, even under the concept
of separation of powers, the supervision of the grand jury is committed to the judicial branch
of the government. As this court has previously stated in a case involving the Washoe County
District Attorney's Office:
Grand juries have traditionally been within the control of the courts, In re Grand Jury
Subpoena to Central States, 225 F.Supp. 923 (N.D.Ill. 1964); In re Ormsby Grand Jury,
74 Nev. S0, 322 P.2d 1099 {195S); and the trial judge should exercise his powers
when appropriate. United States v. Doulin, 53S F.2d 466 {2d Cir. 1976), cert. denied,
429 U.S. S95.
____________________

9
Although this supplemental order was entered approximately five hours prior to the filing of petitioner's
petition for extraordinary relief, at no time has petitioner advised this court of the entry of this order, as required
by NRAP 21(a). See note 8, supra. Rather, this order was first brought to this court's attention by respondent
Judge Schouweiler in his opposition to petitioner's motion for reconsideration or rehearing. Despite this,
petitioner failed to file a reply to the opposition and address this supplemental order.
104 Nev. 427, 438 (1988) Lane v. District Court
Nev. 80, 322 P.2d 1099 (1958); and the trial judge should exercise his powers when
appropriate. United States v. Doulin, 538 F.2d 466 (2d Cir. 1976), cert. denied, 429
U.S. 895. Moreover, our constitutional and statutory scheme contemplate reasonable
judicial control of our grand juries. Thus, the court presides at the impanellment of the
grand jury (Art. 6, 5, Nev. Const.; NRS 6.110-140), receives presentments and
indictments (Art. 6, 5, Nev. Const.; NRS 172.255, 172.285), determines when a grand
jury shall be impanelled (NRS 6.110, 6.130), charges the grand jury as to its authorities
and responsibilities (NRS 172.095), and determines when a grand jury is to be
discharged, recessed (NRS 6.145), or a juror excused (NRS 172.275).
In re Report Washoe Co. Grand Jury, 95 Nev. 121, 126-27, 590 P.2d 622, 625-26 (1979)
(emphasis added). Thus, we concluded that the district court had not undertaken review or
supervision of the performance of the grand jury that exceeded its jurisdiction or infringed
upon powers exclusive to the executive branch of government.
We also rejected petitioner's argument that the district court lacks jurisdiction to disqualify
a prosecutor prior to the filing of a charging document in a criminal matter and to appoint a
special prosecutor. As we noted in our order, NRS 252.100(1) specifically provides, in
relevant part:
If the district attorney . . . for any reason is disqualified from acting in any matter
coming before the court, the court may appoint some other person to perform the duties
of the district attorney. . . .
Indeed, courts in other jurisdictions have recognized that, in exercising its supervisory powers
over grand jury proceedings, a trial court may order the disqualification of attorneys
attending the grand jury where the integrity of the grand jury process and the proper
administration of justice require it. See Amemiya v. Sapienza, 629 P.2d 1126, 1129 (Haw.
1981) (quoting Sapienza v. Hayashi, 554 P.2d 1131 (Haw. 1976)). In the absence of
countervailing authority, we think that a district attorney may be disqualified if a court, in the
exercise of its supervisory powers over the grand jury, determines there is a prospect that the
district attorney has not properly pursued his prosecutorial functions.
10
On rehearing,
petitioner urges this court to consider further certain aspects of the separation of powers
argument raised in his original petition.
____________________

10
Additionally, we refused to accept petitioner's contention that, as long as a district attorney maintained his
qualifications to hold office under NRS 252.010, i.e., Nevada residency and a license to practice law, he can
never be disqualified from proceeding in a particular matter.
104 Nev. 427, 439 (1988) Lane v. District Court
On rehearing, petitioner urges this court to consider further certain aspects of the
separation of powers argument raised in his original petition. Specifically, petitioner states
that he
agrees that based upon the specific statutory and case citations in that Opinion [In re
Report Washoe Co. Grand Jury, supra] that while the courts have those specific
supervisory functions they do not retain or supervise the District Attorney or Attorney
General presentations to the Grand Jury. There is no citation to either statute or case
law which allows the judiciary to make the evidentiary presentation to the Grand Jury,
to have the Court's agent make the presentation to the Grand Jury or to retain any
control over which witnesses or what evidence will be presented prior to the case
actually being presented to the Grand Jury.
Petitioner further contends that, should the district attorney refuse to resubmit this matter to
the grand jury, under NRS 173.065 the prosecutorial responsibility for the case remains with
the executive branch rather than with a special prosecutor selected by the district court.
As we have stated many times, matters previously presented to this court may not be
reargued in a petition for rehearing. See NRAP 40(c)(1); In re Herrmann, 100 Nev. 149, 151,
679 P.2d 246, 247 (1984). Petitioner is therefore improperly raising this issue for a second
time before this court. In any event, we have reviewed petitioner's argument on rehearing and
conclude that further consideration of his separation of powers argument is unwarranted.
First, respondents are not attempting to supervise the district attorney's presentation to the
grand jury. They merely appointed an independent attorney to conduct an investigation to
determine whether the case should be resubmitted to the grand jury. Neither are respondents
making the evidentiary presentation to the grand jury, or controlling the witnesses or evidence
to be presented. Likewise, the district court's agent is not presenting the case to the grand jury,
but simply investigating whether the matter should be resubmitted to the grand jury.
Additionally, the district court's supervisory powers are not as limited as petitioner
suggests. Its powers over the grand jury extend beyond those declared specifically by statute:
A grand jury has no existence aside from the court which calls it into existence and
upon which it is attending. A grand jury does not become, after it is summoned,
impaneled, and worn, an independent planet, as it were, in the judicial system, but still
remains an appendage of the court on which it is attending. . . .
104 Nev. 427, 440 (1988) Lane v. District Court
it is attending. . . . It is and remains a grand jury attending on the court, and does not,
after it is organized, become an independent body, functioning at its uncontrolled will,
or the will of the district attorney or special assistant. . . . A supervisory duty, not only
exists, but is imposed upon the court, to see that its grand jury and its process are not
abused, or used for purposes of oppression and injustice.
People v. Sears, 273 N.E.2d 380, 387-88 (Ill. 1971) (quoting In re National Window Glass
Workers, 287 F. 219 (N.D. Ohio 1922)): see also Annotation, Power of Court to Control
Evidence or Witnesses Going Before Grand Jury, 52 A.L.R.3d 1316 (1973).
Further, NRS 173.065 does not support petitioner's argument that the attorney general,
rather than a special prosecutor, should resubmit a case to the grand jury when the district
attorney refuses to do so. That statute provides for the appointment of the attorney general in
the district attorney's place when the district attorney refuses to prosecute a person who has
committed a crime.
11
As noted in our order denying extraordinary relief, it might well be
appropriate that the attorney general perform the function of alternate prosecutor following
the return of any indictments. At this point in time, however, no indictments have been filed
and, accordingly, a prosecution has not begun. See Ryan v. District Court, 88 Nev. 638, 503
P.2d 842 (1972) (prosecution of a case does not begin until after charges are filed). Hence,
petitioner's concern in this regard is premature.
Similarly, we reject petitioner's contention that respondents have no authority to require
the special prosecutor to report to respondent Judge Schouweiler prior to resubmitting the
case to the grand jury. NRS 172.255(4) requires the district court to approve the resubmission
of a matter to the grand jury if a grand jury has previously refused to indict on the same
charges.
GRAND JURY PROCEEDINGS
Petitioner next argues that rehearing is warranted because we overlooked the request in his
original petition that this court inspect the grand jury transcript. He contends that a review of
this transcript will establish that there was no irregularity in the presentation of the case. As
noted above, in contravention of NRAP 21{a), a copy of this transcript was not appended to
the writ petition.
____________________

11
NRS 173.065 states:
The judge of the court having jurisdiction may in extreme cases, upon affidavit filed with him of the
commission of a crime, require all available evidence to be delivered to the attorney general for
prosecution, if the district attorney refuses to prosecute any person for such crime.
104 Nev. 427, 441 (1988) Lane v. District Court
NRAP 21(a), a copy of this transcript was not appended to the writ petition. Nonetheless, we
have now reviewed the grand jury transcript. We adhere to our prior determination that
petitioner failed to demonstrate that the district court acted arbitrarily or capriciously in
determining that a judicial inquiry is warranted into the presentation of the case to the grand
jury.
A. WITHHOLDING OF INCULPATORY EVIDENCE
First, our review of the grand jury transcript reveals sufficient evidence to support the
district court's determination that the deputy district attorney may have withheld inculpatory
evidence from the grand jury. The transcript of the grand jury presentation reveals that the
deputy district attorney handled the presentation in such a manner that the results of the
sheriff department's investigation were never revealed. Indeed, the deputy district attorney not
only failed to list the investigating officers as witnesses on the proposed indictments, he also
failed to inform the grand jury that they were present to testify on March 26th. Additionally,
the grand jurors were never made aware of the existence of the eight exhibits generated as a
result of the investigation or that the suspects gave allegedly incriminating statements to law
enforcement officials. It does not, as petitioner argues, appear from the transcript that the
grand jurors refused to hear more testimony. Rather, it appears from the transcript that the
proceedings ended due to the deputy district attorney's repeated references to scheduling
pressures and to his doubts about the availability of witnesses or the suspects to testify. The
deputy district attorney's suggestion that the grand jury take a break during the presentation of
the case, despite the time pressures, is particularly troubling. It is not apparent why he wanted
the grand jury to break, and we query whether he was creating the time shortage of which he
repeatedly complained. The prosecutor is under a duty not to inflame or otherwise improperly
influence the grand jury's ability to evaluate the evidence independently and impartially. See
Sheriff v. Frank, 103 Nev. 160, 734 P.2d 1241 (1987). As this court stated in Franklin v.
State, 89 Nev. 382, 386, 513 P.2d 1252, 1255 (1973):
In presenting a case to a grand jury a prosecutor . . . must scrupulously refrain from
words or conduct that will invade the province of the grand jury or tend to influence the
jurors in their judgment.
The deputy district attorney's conduct before the grand jury is therefore clearly a matter of
legitimate concern, and validates the conclusion of the district court that the case had not
been properly presented.
104 Nev. 427, 442 (1988) Lane v. District Court
B. VIOLATION OF RAPE SHIELD LAW
It also appears from the transcript that the deputy district attorney presented improper
evidence to the grand jury of the complainants' asserted reputations for promiscuity and
specific instances of their prior sexual encounters in violation of NRS 172.135(2) and
Nevada's rape shield law. The grand jury can receive none but legal evidence, and the best
evidence in degree, to the exclusion of hearsay or secondary evidence. NRS 172.135(2). In
1975, Nevada, joining the vast majority of jurisdictions, passed statutes limiting the
admissibility at trial of evidence concerning the sexual history of a complaining witness in a
rape or sexual assault case. To this end, NRS 50.090 prohibits the accused from impeaching a
rape victim's credibility with evidence of her prior sexual conduct, unless the victim has
testified regarding her sexual history or the prosecution has presented evidence regarding the
victim's prior sexual conduct.
12
NRS 48.069 further prohibits the accused from introducing
such evidence to prove the victim's consent unless the procedures set forth in that statute are
followed.
13
NRS 48.069 contemplates that before admitting any evidence of prior sexual
conduct the district court will conduct a hearing, based upon the accused's specific written
offer of proof, and determine whether the evidence is relevant to the issue of consent and
whether it is of sufficient probative value to outweigh the danger of unfair prejudice, of
confusion of the issues, and of misleading the jury.
____________________

12
NRS 50.090 provides:
In any prosecution for sexual assault or statutory sexual seduction or for assault with intent to commit,
attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any
previous sexual conduct of the victim of the crime to challenge the victim's credibility as a witness unless
the prosecutor has presented evidence or the victim has testified concerning such conduct, or the absence
of such conduct, in which case the scope of the accused's cross-examination of the victim or rebuttal shall
be limited to the evidence presented by the prosecutor or victim.
NRS 175.186 correspondingly restricts jury instructions:
1. In any prosecution for sexual assault or statutory sexual seduction or for an assault with intent to
commit, attempt to commit or conspiracy to commit either crime, the term unchaste character may not
be used with reference to the alleged victim of the crime in any instruction to the jury.
2. In a prosecution for sexual assault or statutory sexual seduction, the court may not give any
instructions to the jury to the effect that it is difficult to prove or establish the crime beyond a reasonable
doubt.

3
NRS 48.069 provides:
In any prosecution for sexual assault or for assault with intent to commit, attempt to commit or
conspiracy to commit a sexual assault, if the accused desires to present evidence of any previous sexual
conduct of the victim of the crime to prove the victim's consent:
1. The accused shall first submit to the court a written offer of proof, accompanied by a sworn
statement of the specific facts that he expects to prove and pointing out the relevance of the facts to the
issue of the victim's consent.
2. If the court finds that the offer of proof is sufficient, the court
104 Nev. 427, 443 (1988) Lane v. District Court
court will conduct a hearing, based upon the accused's specific written offer of proof, and
determine whether the evidence is relevant to the issue of consent and whether it is of
sufficient probative value to outweigh the danger of unfair prejudice, of confusion of the
issues, and of misleading the jury. NRS 50.090 and 48.069 expressly limit the admission of
such evidence to prosecutions. Because prosecution of a case does not exist until charges are
filed, see Ryan v. District Court, 88 Nev. 638, 503 P.2d 842 (1972), evidence of prior sexual
conduct is not admissible under NRS 48.069 and 50.090, and cannot become legal evidence
within the meaning of NRS 172.135(2), until on motion a district court rules it to be such
following the return of the indictment. See NRS 172.005. Consequently, this evidence is
inadmissible before the grand jury.
Nevada's rape shield law recognizes that there may be no relationship between prior sexual
conduct and the victim's ability to relate the truth, and that whether a victim has previously
consented to sexual activity under different circumstances may have little or no relevance to
the issue of her consent to the activities which resulted in the rape prosecution. Moreover, the
rape shield law acknowledges that such evidence tends to distract and inflame the jury and
carries with it the danger of unduly prejudicing the truth-finding process. See Summitt v.
State, 101 Nev. 159, 163, 697 P.2d 1374, 1377 (1985); State v. Hudlow, 659 P.2d 514 (Wash.
1983); People v. McKenna, 585 P.2d 275 (Colo. 1978); Comment, EvidenceAdmissibility
of the Victim's Past Sexual Behavior Under Washington's Rape Evidence LawWash. Rev.
Code 9.79.150 (1976), 52 Wash.L.Rev. 1011, 1033 (1977). As Justice John Mowbray
recently explained,
Such [rape shield] laws have generally been designed to reverse the common law
rule applicable in rape cases, that use of evidence of a female complainant's general
reputation for morality and chastity was admissible to infer consent and also to attack
credibility generally. Thus, for example, it had been held: It is a matter of common
knowledge that the bad character of a man for chastity does not even in the remotest
degree affect his character for truth, when based upon that alone, while it does that of a
woman. State v. Sibley, 33 S.W. 167, 171 {Mo.
____________________
shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the
victim regarding the offer of proof.
3. At the conclusion of the hearing, if the court determines that the offered evidence:
(a) Is relevant to the issue of consent; and
(b) Is not required to be excluded under NRS 48.035, the court shall make an order stating what
evidence may be introduced by the accused and the nature of the questions which he is permitted to ask.
The accused may then present evidence or question the victim pursuant to the order.
104 Nev. 427, 444 (1988) Lane v. District Court
S.W. 167, 171 (Mo. 1895), quoted in State v. Brown, 636 S.W.2d 929, 933 n. 3 (Mo.
1982), cert. denied sub nom., Brown v. Missouri, 103 S.Ct. 1207 (1983). Such statutes
as Nevada's have been described as directed at the misuse of prior sexual conduct
evidence based on this antiquated and obviously illogical premise. State v. Hudlow,
659 P.2d 514, 519 (Wash. 1983). See also People v. McKenna, 585 P.2d 275, 278
(Colo. 1978). An additional purpose of such statutes is to protect rape victims from
degrading and embarrassing disclosure of intimate details about their private lives.'
124 Cong. Rec. at H 11945 (1978), quoted in Doe v. United States, 666 F.2d 43, 45
(4th Cir. 1981). Finally, [t]he restrictions placed on the admissibility of certain
evidence by the rape-shield laws will, it was hoped, encourage rape victims to come
forward and report the crimes and testify in court protected from unnecessary
indignities and needless probing into their respective sexual histories. State v. Lemon,
456 A.2d 261, 264 (R.I. 1983).
Summitt v. State, 101 Nev. at 161, 697 P.2d at 1375.
In light of the questionable relevance of this evidence and its distracting and inflammatory
nature, the policies underlying Nevada's rape shield law would be defeated if, in grand jury
proceedings, evidence regarding the victim's prior sexual acts or reputation for promiscuity is
disclosed. If deputy district attorneys are allowed to present such evidence before grand
juries, while as here the complaining witnesses are afforded no chance to explain or deny, it is
likely few, if any, indictments would be returned. The presentation to the grand jury of such
potentially prejudicial evidence could result in an inability to institute prosecution of a crime,
due to evidence that might well later have been ruled inadmissible at trial. In such
circumstances, the complaining witness would be denied the opportunity to prosecute an
attacker due to untested use of the complainant's asserted reputation and purported prior
sexual encounters, and without regard to the particular facts and circumstances of the alleged
sexual assault.
In the present case, the deputy district attorney first elicited testimony from Jane that she
had previously been involved in a romantic relationship with one of the suspects, and from
Mary that she also had a prior romantic relationship with Roe, the friend of the suspects
who testified immediately following the grand jury's break. Although the complainants had
testified only to a romantic relationship with these men, the deputy district attorney later
questioned, or permitted the grand jury to question, the suspect and Roe about whether they
had previously engaged in sexual relations with the women. Further, the deputy district
attorney permitted the suspect to testify concerning Mary's previous refusal to have sex
with one of the other suspects.
104 Nev. 427, 445 (1988) Lane v. District Court
attorney permitted the suspect to testify concerning Mary's previous refusal to have sex with
one of the other suspects. Although the four suspected participants in the crimes were willing
and available to testify, the deputy district attorney presented the opinion testimony of Doe
and Roe, two persons absent at the time of the alleged assaults, that the complainants
consented to the sexual acts. Despite the obviously prejudicial nature of such testimony, the
deputy district attorney also permitted Doe, who had never met the complainants prior to the
evening in question, to testify as to the complainants' alleged reputations for promiscuity. The
deputy district attorney, by eliciting such testimony, permitted the grand jury to receive
evidence of prior sexual conduct in violation of the rape shield law and NRS 172.135(2).
This case highlights the need to apply such controls on this type of evidence to
presentations before the grand jury. Violation of the rape shield law may well have
compromised the grand jury's ability to evaluate the evidence independently and impartially
in the instant case. The grand jurors themselves elicited Doe's account of the complainants'
reputations, and inquired of the suspect whether he, his roommate or any of the other guys
had previous sexual relations with the two women. Moreover, the deputy district attorney, to
what legitimate end is unknown to this court, also posed questions relating to the alleged
victims' prior sexual conduct. The transcript indicates that this evidence confused the issues
and misled the grand jury. Yet, when the foreman questioned the relevance of this evidence,
the deputy district attorney did nothing to dissipate the grand jury's perplexity, but simply
reiterated that: The legal question here today is the strict thing that is laid out in the proposed
Indictment. . . .
Finally, we reject petitioner's contention that his deputy was required to present such
evidence by virtue of NRS 172.145 because of its exculpatory nature.
14
Evidence of prior
sexual conduct is not identified as exculpatory evidence until after the accused submits the
issue of consent to the court and the court determines, after a hearing on the matter, that the
evidence is more probative than prejudicial. See NRS 48.069.
15
C.
____________________

14
NRS 172.145 provides, in part:
1. The grand jury is not bound to hear evidence for the defendant.
. . .
2. If the district attorney is aware of any evidence which will explain away the charge, he shall submit
it to the grand jury.
. . .

15
Although the district attorney is precluded from presenting evidence of prior sexual conduct to the grand
jury, Brady v. Maryland, 373 U.S. 83 (1963), requires disclosure to the accused, upon request, of such evidence
where it is material either to guilt or punishment.
104 Nev. 427, 446 (1988) Lane v. District Court
C. HEARSAY DIMINISHING VICTIMS' CREDIBILITY
As noted above, [t]he grand jury can receive none but legal evidence, and the best
evidence in degree, to the exclusion of hearsay or secondary evidence. NRS 172.135(2). The
opinion testimony of two individuals, who were not present at the time of the alleged sexual
assault, that the complainants consented to the acts was neither legal nor the best evidence.
NRS 50.025 provides that to be competent to testify, a witness must have personal knowledge
of the subject of his testimony. Thus, the two witnesses called by the deputy district attorney,
who were not present at the time in question, were incompetent to testify as to the alleged
victims' consent. Additionally, the four suspected participants in the crimes who had personal
knowledge of the events were willing and available to testify. If the prosecutor felt compelled
to present evidence of the complainants' consent, opinion testimony of two persons absent at
the time of the alleged assaults was not the best evidence available. Further, as noted above,
this opinion evidence, as well as the testimony regarding the complainants' reputations in
general for promiscuity and prior sexual conduct, was highly inflammatory, and for the most
part, hearsay evidence. As such, it was presented to the grand jury in violation of NRS
172.135.
NOTICE AND OPPORTUNITY TO BE HEARD
The original petition for a writ of prohibition complained that respondents entered the
order appointing a special prosecutor without any prior notice to the Washoe County District
Attorney's Office that there was an Order being prepared or even that the Court was
conducting an investigation, and that respondents failed to give the District Attorney any
notice or opportunity to be heard in the matter. . . . Although the original petition contained
these statements, it set forth absolutely no legal authority demonstrating that a district
attorney is entitled to notice and an opportunity to be heard prior to being enjoined from
investigating a particular case. Although affidavits executed by the petitioner and the deputy
district attorney vaguely alluded to notions of procedural due process, these concepts were not
developed elsewhere in the petition or supported by any points and authorities. It did not,
therefore, appear that petitioner was tendering this issue to this court, as petitioner made no
effort whatsoever to support the statements quoted above. Thus, due to the dearth of authority
presented by petitioner to support the statements regarding notice and opportunity to be
heard, this court did not address the merits of those statements. See, e.g., Franklin v. State, 89
Nev. 382, 386, 513 P.2d 1252, 1255 (1973).
104 Nev. 427, 447 (1988) Lane v. District Court
Although petitioner has now tendered this issue on rehearing, because this argument is now
briefed for the first time in a petition for reconsideration, we would not ordinarily grant a
rehearing of our previous determination that extraordinary relief is not warranted.
16
See
NRAP 40(c)(1). Nevertheless, in the instant case, in the interest of moving toward a correct
resolution of this matter, we will address the arguments that petitioner now presents for the
first time.
Petitioner contends that he is entitled to notice and an evidentiary hearing before the
district court can disqualify the district attorney's office from prosecuting a case. In
opposition, respondent states that the special prosecutor was intended to function as a
special investigator for the Court charged with the narrow duty of evaluating the case for
possible resubmission to the grand jury. He argues that the district attorney was not
disqualified from resubmitting the matter to the grand jury, and therefore was not entitled to
notice and a hearing prior to the appointment of the special prosecutor. Consequently, it
appears that the district court merely enjoined petitioner from acting during Elcano's
investigation and did not disqualify petitioner from prosecuting the case. In either event,
however, under the circumstances of this case, we conclude that the district court should have
afforded the district attorney notice and an opportunity to be heard prior to the appointment of
this investigator.
As noted above, the district court, in the exercise of its supervisory powers over the grand
jury, has authority to displace a district attorney where it appears that the district attorney has
not properly pursued his prosecutorial functions. In the instant case, it does not inexorably
appear on the face of the record that the district attorney was a blameworthy participant in the
prosecutorial omissions. The record reveals that it was the deputy district attorney who
presented the case to the grand jury and who committed the improprieties discussed above.
On the other hand, the district attorney, at the time the orders were entered, was not actively
pursuing the prosecution of this case below. Once the deputy district attorney obtained a no
true bill, the district attorney accepted this result and, in the two years since then, has
actively resisted any prosecution of the matter. Moreover, the deputy district attorney has,
since the issuance by the district court of the challenged order, arguably adopted the position
of the accused by repeatedly making statements to the media characterizing the suspects'
statements to law enforcement officials as not being confessions or admissions. See, e.g.,
Judge Accuses DA of Withholding Evidence, Reno Gazette-Journal, February 13, 19SS.
____________________

16
We note that respondent Judge Schouweiler, in his opposition to the petition for rehearing, waives all
claims of procedural insufficiency of the rehearing petition. This court is not obliged, however, to accept
respondents' tendered waiver.
104 Nev. 427, 448 (1988) Lane v. District Court
terizing the suspects' statements to law enforcement officials as not being confessions or
admissions. See, e.g., Judge Accuses DA of Withholding Evidence, Reno Gazette-Journal,
February 13, 1988. It thus appears that the district attorney and his staff may have neither the
desire nor the intention to see the case resubmitted to the grand jury or prosecuted by way of
an information. See NRS 172.255(4) (permitting resubmission to the grand jury upon
approval by the court). Since the record does not conclusively show, however, that the district
attorney will not conscientiously perform his functions, we think the court, prior to taking
further action, should accord the district attorney notice and an opportunity to be heard.
In Collier v. Legakes, 98 Nev. 307, 311, 646 P.2d 1219, 1221 (1982), the district court had
disqualified the entire Clark Count District Attorney's Office without first holding an
evidentiary hearing or hearing argument from the district attorney. Because the court's ruling
in that case was based solely on the appearance of impropriety, we concluded that the district
judge had, in effect, failed to exercise his discretion. Consequently, we directed the district
court to conduct a hearing to determine, after a consideration of all the relevant facts, whether
the prosecutorial function could be carried out impartially by the district attorney's office.
Similarly, in the present case, we conclude that a hearing is warranted to determine whether
individual rather than vicarious disqualification may be appropriate under the circumstances
of this case. See Collier v. Legakes, supra; Brinkman v. State, 95 Nev. 220, 592 P.2d 163
(1979).
Accordingly, we grant a writ of prohibition directing that the inquiry ordered below shall
not proceed further until a hearing on notice to the district attorney has been conducted before
the district court, affording the district attorney an opportunity to be heard. On remand, the
court shall determine whether the district attorney was involved in or later ratified the
deputy's derelictions, and whether the district attorney is able to go forward and is willing to
resubmit the matter to the grand jury, should the court determine that resubmission is
warranted. In order that the district attorney will be afforded a full and fair opportunity to
respond thereto, the respondent judges shall place on record, for the consideration of the
successor judge hereinafter designated, reports of any and all evidence which may tend to
support their conclusions that there is a need for a special prosecutor herein. Because it
appears that the respondent judges have already expressed factual determinations as to this
ultimate issue, we hereby assign The Honorable David Zenoff, Senior Justice, to conduct the
hearing on remand. Nev. Const. art. 6, 19(1)(c).
Young, J., concurs.
104 Nev. 427, 449 (1988) Lane v. District Court
Steffen, J., with whom Mowbray, J., agrees, concurring:
The sole issue before this court is whether the district court exceeded its jurisdiction in
divesting the district attorney of his prosecutorial prerogatives and appointing a special
prosecutor to assume the functions of the district attorney in the criminal matter now before
us. I concur only in that segment of the court's opinion that grants the writ of prohibition and
conditionally concur on remanding the matter for hearing before a different district judge. The
remainder of the majority opinion unnecessarily and, in my judgment, improperly, weighs and
characterizes facts, addresses and purports to resolve unbriefed non-issues, and generally
tends to cast a pall over future considerations by a successor judge. As a result, I have felt
compelled to address the court's opinion.
Preliminarily, I think it necessary to correct the majority's attribution of endorsement by
Chief Judge Robin Anne Wright of the factual determinations of the order issued by the
Honorable Robert L. Schouweiler. Judge Wright, along with all seven of the other district
court judges of the Second Judicial District, took unprecedented measures to fully separate
themselves form the Schouweiler order of February 12, 1988 (the order at issue). In a written
order filed on February 24, 1988 and entitled Order Clarifying Import of Chief Judge's
Signature, Chief Judge Wright and each of the other seven judges referred to the February
12, 1988 order as containing the opinion of Judge Robert Schouweiler. The eight-judge order
then proceeded to declare that: The judges of the other Departments in the Second Judicial
District have had no involvement in the case to date and consequently have no desire or
reason to express an opinion as to the form or the contents of that [the Schouweiler] order.
Chief Judge Wright, beneath her signature, specified that she had signed the Schouweiler
order in her capacity as the Judge who presides over the grand jury. Obviously, the
eight-judge order was tautological as everyone understands that the judge who was solely
responsible for the order and its contents is the Honorable Robert L. Schouweiler. I therefore
suggest that the majority has unfairly concluded that the Honorable Robin Anne Wright has
already expressed factual determinations as to this ultimate issue [the need for a special
prosecutor].
I. The Order
The order of February 12, 1988 (the order) was issued after certain ex parte contacts with
Judge Schouweiler apparently convinced the judge that a grand jury's refusal to indict four
UNR student-athletes for sexual assault resulted from a corrupt presentation or withholding
of evidence by the district attorney's office.
104 Nev. 427, 450 (1988) Lane v. District Court
Unfortunately, the judge, rather than contacting the district attorney for an explanation or
scheduling an informal hearing to fairly consider all aspects of the matter, issued the order
charging the district attorney, Mills Lane, with personally handling the grand jury
presentation together with a deputy, and with personally telling the investigating and
knowledgeable sheriff's deputies that their testimony wouldn't be needed. Moreover, Judge
Schouweiler's order described the issue as whether the District Attorney, Mr. Lane, withheld
from the Grand Jury evidence of confessions to, or admissions of, sexual assault by some of
the suspects. Continuing, the order specified that [t]he Court finds there is evidence to
suggest that the District Attorney, Mr. Lane, may have concealed from the Grand Jury
inculpatory evidence of a serious crime, sexual assault. The order proceeded to further
malign Mr. Lane by strongly inferring that he had betrayed his public trust and concluding
that it was deeply disturbing to the Court that in this case Mr. Lane may have hidden
evidence of possible guilt in connection with a most serious crime, violating his duty as a
public prosecutor.
Thereafter, the order divested the district attorney of his prosecutorial prerogatives in the
matter and appointed a special prosecutor to further evaluate the case for resubmission to the
Washoe County Grand Jury and to determine whether to present evidence that a crime
occurred.
Although Judge Schouweiler, in his answer to the petition, indicates that the district
attorney manifested an important misunderstanding in accepting his appointment and
designation of a special prosecutor at face value, and that the district attorney should have
perceived that the order was only appointing a special investigator, I suggest that the judge
is wrong. Equally wrong, in my opinion, is the majority who has accepted Judge
Schouweiler's belated explanation that the order appointed only an evaluator or investigator.
I have not the slightest doubt that Judge Schouweiler is aware of the difference between a
special prosecutor and a special investigator. In appointing the former, the judge enjoined the
district attorney from proceeding further in the case and then expressly appointed Paul D.
Elcano, Jr., Esq. to act as Special Prosecutor to perform the duties of District Attorney in
this case. (Emphasis added.) Obviously, if the district judge merely wanted to launch a
special investigation to ascertain whether wrongdoing existed in connection with the grand
jury presentation, it would have been neither necessary nor judicially proper to enjoin the
district attorney and appoint a special prosecutor to perform the duties of the district
attorney. Moreover, the appointment was ostensibly made pursuant to NRS 252.100, the
statute that deals with the appointment of a substitute for the district attorney when the
district attorney "fails to attend any session of the district court, or for any reason is
disqualified."
104 Nev. 427, 451 (1988) Lane v. District Court
that deals with the appointment of a substitute for the district attorney when the district
attorney fails to attend any session of the district court, or for any reason is disqualified.
Finally, the clear language of the order specifies that if the special prosecutor determines to
present evidence to the grand jury, he shall not proceed further without approval by the
court. (Emphasis added.) Clearly, the order contemplated that the special prosecutor would
handle the presentation before the grand jury if the judge agreed with his analysis and
recommendation. In short, the order purported to relieve the district attorney from the
performance of his duties, enjoined him from doing so, and thereafter specifically appointed
Mr. Elcano as special prosecutor. The district attorney did not misunderstand the intended
import and effect of the purported order.
The order, which was prepared and filed without notice or hearing and before Judge
Schouweiler had even seen the transcript of the grand jury proceedings, was disseminated to
the news media well in advance of the date when the district attorney received his formal
copy. Moreover, the order cannot be viewed merely as a fugitive document purporting to
substitute a special prosecutor for the district attorney. The order purports to reflect evidence
in the possession of Judge Schouweiler indicating that Mr. Lane has committed a criminal
offense. The judge, in a unilateral finding, asserts that there is evidence to suggest that Mr.
Lane may have concealed from the grand jury evidence of sexual assault. If, indeed, the judge
has evidence proving that the district attorney concealed or hid evidence of the
commission of a serious crime in order to preclude prosecution, action should be taken under
NRS 252.190. If, on the other hand, the accusatory recitals of the order are without
foundation, measures should be taken to prevent a reoccurrence of such a demeaning and
destructive abuse of judicial power.
Although the district attorney has never had the opportunity to present his evidence before
a tribunal authorized to weigh the facts, this court lends credence to the unilateral order by,
inter alia, suggesting that it does not inexorably follow that the district attorney himself,
Mills Lane, was a blameworthy participant in the prosecutorial omissions. The clear
implication of the majority's characterization is that Mr. Lane was most likely blameworthy,
but the conclusion is not absolute. The majority then notes, quite unfairly and without
justification, in my opinion, that the district attorney accepted the no true bill of the grand
jury and, in the two years since then, has actively resisted any prosecution of the matter.
Again, the inference seems to be that a district attorney should personally seek to reclaim an
indictment whenever a grand jury refuses to indict. More importantly, the majority and
Judge Schouweiler incorrectly attribute to Mr.
104 Nev. 427, 452 (1988) Lane v. District Court
tantly, the majority and Judge Schouweiler incorrectly attribute to Mr. Lane an active
resistance to prosecution when, in fact, the district attorney has done nothing other than resist
an invalid order that sought to disqualify him without procedural due process. To my
knowledge the district attorney has never indicated that he would not fully and fairly consider
evidence tending to support an allegation that the matter was not effectively presented to the
grand jury. It is clear that the order's assertion that [t]he evidence indicates the case was
handled by Mr. Mills Lane and Mr. John Aberasturi is untrue according to the grand jury
transcript. Unless Judge Schouweiler has evidence indicating that Mr. Lane was acting behind
the scenes to instruct Mr. Aberasturi in his presentation, Mr. Lane has been falsely and
unfairly accused of handling the case and no inference should be drawn that he would not be
impartial or effective in reconsidering the matter.
Article 6, 4 of the Nevada Constitution confers upon our court appellate jurisdiction on
questions of law alone in all criminal cases originating in the district courts. This court said
long ago that:
by a wise constitutional provision, the jurisdiction of this court, because of its situation,
has been limited, in criminal cases, to questions of law alone. We can, as a question of
law, decide whether or not there is any evidence in the record to support every fact that
is necessary to constitute the crime of which the defendant has been convicted; but
should we pass beyond that limit, we should assume the duties of the trial jury and
court below, disregard a constitutional prohibition, and often fall into the error of giving
weight and value to false testimony that has been properly considered and rejected by
those who alone can judge of its character.
State v. Mills, 12 Nev. 403, 406 (1877).
The constitutional prohibition has special force in the instant proceeding where no
properly constituted tribunal has found facts pertinent to the underlying grand jury
presentation by the state. Judge Schouweiler had not seen the grand jury transcript before
issuing his order, and in fact stated: The issue presented is not in any way the possible guilt
or innocence of those involved. The issue is whether the District Attorney, Mr. Lane,
withheld from the Grand Jury evidence of confessions to, or admissions of, sexual assault by
some of the suspects. Judge Schouweiler thereafter found that there is evidence of such
concealment. Indeed, the judge ultimately shifted from a finding of evidence suggesting the
concealment of evidence by Mr. Lane, to an unequivocal finding of such concealment when
he declared that "[t]he trust of several groups of people is violated by this unconscionable
withholding of evidence."
104 Nev. 427, 453 (1988) Lane v. District Court
to an unequivocal finding of such concealment when he declared that [t]he trust of several
groups of people is violated by this unconscionable withholding of evidence.
It is thus seen, as I observed previously, that Judge Schouweiler has issued an order
implicating issues far more serious than the issue of the validity or impropriety of the order.
The order purports to reflect evidence of the commission of a criminal suppression of
evidence by Mr. Lane in order to frustrate prosecution of a series of felonies. Given the fact
that the order was issued without notice or an opportunity to be heard, this court should
exercise the greatest caution in characterizing the proceedings below. Although I will
elucidate the point in greater detail hereafter, an example of my concern is illustrated by the
majority's judgmental direction that [o]n remand, the court shall determine whether the
district attorney was involved in or later ratified the deputy's derelictions. (Emphasis
supplied.)
Although the majority has said nothing about the validity of the order, it is clear that it is
void. A writ of prohibition, appropriately issued by the majority in the instant case, will issue
only where a tribunal has acted without or in excess of the jurisdiction of such tribunal. NRS
34.320; Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 607 P.2d 1140 (1980);
McComb v. Fourth Judicial Dist. Court, 36 Nev. 417, 136 P. 563 (1913). Here, Judge
Schouweiler entered a criminal finding against the district attorney, disqualified him from
proceeding with his rightful functions and appointed a special prosecutor to act in his stead
without the due process requirements of notice and an opportunity to be heard. I therefore
concur with the majority that prohibition must issue. Moreover, this court vacated the order
of disqualification entered by the district court in Collier v. Legakes, 98 Nev. 307, 311, 646
P.2d 1219, 1221 (1982), where the district court judge failed to hold an evidentiary hearing
and refused to hear argument by the district attorney. In Collier, there was at least a case and
a motion before the court and the district attorney was given notice of the hearing. In the
instant case, there was no case and no motion and no procedural rights were accorded the
district attorney before entry of the order disqualifying him because of alleged findings of
personal corruption. The entire matter was pre-judged by Judge Schouweiler based upon ex
parte contacts and before he had even received a copy of the grand jury transcript.
In a remarkably similar case, State ex rel. Preissler v. Dostert, 260 S.E.2d 279 (W.Va.
1979), an order entered by the general jurisdiction court (circuit court) without benefit of a
motion and hearing was declared void and a petition for writ of prohibition granted.
104 Nev. 427, 454 (1988) Lane v. District Court
granted. Although the office of prosecuting attorney in West Virginia is created by the state
constitution, the holding in large measure is apposite to the instant case as there was no
attempt to remove the prosecuting attorney from officeonly to disqualify him pursuant to a
West Virginia statute. Because of the obvious similarities, the following excerpts from
Dostert have application here.
We note and are concerned that the record fails to show any institution or proceedings
which would have invoked the jurisdiction of the circuit court to disqualify the elected
prosecutor. We recognize that this issue is not raised by either party before us and
ordinarily we would refuse to consider matters outside the pleadings. However, as this
matter affects the jurisdiction or power of the lower court to act, this Court may
properly raise the issue on its own motion and take notice of a lack of jurisdiction in the
lower court.
* * *
[I]n order for a court to obtain jurisdiction of a given case, proper procedures must be
pursued. Proceedings in a court which has not acquired jurisdiction as provided and
recognized by law are void and a nullity.
* * *
We find nothing in the record to indicate that any recognized procedure was followed to
invoke the jurisdiction of the circuit court to disqualify the prosecuting attorney.
The general rule is that in order for a court to obtain jurisdiction of a particular
matter, there must be an appropriate application by a person invoking the judicial power
of the court and that application must be in proper legal form. 20 Am.Jur.2d, Courts
94; 21 C.J.S., Courts 81. The proper form for application for an order recusing the
prosecutor is by a motion, stating with particularity the grounds therefore [sic].
W.Va.R.Civ.P., Rule 7(b)(1). In this particular case, since there was no hearing or trial
in progress before the circuit court, such a motion would have had to be in writing.
The record reveals no motion by either the petitioner or the State requesting the
removal of the prosecutor from petitioner's case in magistrate court. The answer
presents the sworn affidavit of petitioner's former counsel stating that counsel
informally communicated to the respondent petitioner's demand that he either be
allowed to have a hearing on the charges or that the charges be dismissed with
prejudice. There is no evidence or allegation that a request was made at that time for
recusal nor is there any record of a written motion to that effect. It is well-settled that a
court of record speaks only through its record and anything not appearing on the
record does not exist in law.
104 Nev. 427, 455 (1988) Lane v. District Court
speaks only through its record and anything not appearing on the record does not exist
in law.
* * *
With some exceptions, an attempt by a court to assume jurisdiction in a particular
matter on its own motion is futile and proceedings had pursuant to such a motion are
void. To permit a judge to invoke the jurisdiction of his court sua sponte would place
him in a position of a complainant deciding the merits of his own complaint in violation
of the ancient homily of the law that no man may be a judge in his own case.
Consequently, we hold that where, as here, there is no showing on the record that
any party has properly instituted proceedings in a court of record, the court cannot
exercise jurisdiction over the matter and any purported order or judgment entered is
void and its enforcement may be restrained by prohibition.
* * *
Finally, we note that the prosecuting attorney is elected by the people of the county
to represent them in prosecutions against criminal offenders. Consequently, the public
has a right to know why the attorney they have selected to represent them and whose
salary they pay with their taxes, is unfit to prosecute a given case. . . . The court must
provide every safeguard to insure the public that the business of the State is being
properly conducted. A hearing on the record provides the public with an accurate record
of the actions of their elected officials, upon which they may evaluate his performance.
We are of the opinion, therefore, that before a prosecuting attorney may be
disqualified from acting in a particular case and relieved of the duties imposed upon
him by the Constitution and by statute, the reasons for his disqualification must appear
on the record, and where there is any factual question as to the propriety of the
prosecutor acting in the matter, he must be afforded notice and an opportunity to be
heard.
260 S.E.2d at 284-87.
This court was faced with the same type of misappropriated judicial power that existed in
Dostert and the instant case in Cunningham v. Eighth Judicial Dist. Court, 102 Nev. 551, 729
P.2d 1328 (1986). In Cunningham we held:
More importantly, it is apparent that Judge Goldman acted in excess of his
jurisdiction not only when he ordered Commander Cunningham to appear in his
chamber within ten minutes, but later when he issued the show cause order, and when
he held Commander Cunningham in contempt of court.
104 Nev. 427, 456 (1988) Lane v. District Court
court. No civil or criminal action was pending before Judge Goldman during this time
upon which such orders might lawfully issue. A district judge has no authority, inherent
or otherwise, to issue an order to anyone to appear before him except as expressly
provided by law. Because no criminal or civil action involving the right to possess the
video tapes was pending before Judge Goldman, he lacked subject matter jurisdiction
over the underlying dispute. Furthermore, because nothing remotely resembling a
proper order had been issued and served upon Cunningham, in regard to any proper
proceeding, Judge Goldman had no personal jurisdiction whatever over Cunningham.
Even if the necessary action had been properly before Judge Goldman, a district judge
lacks jurisdiction to order anyone to appear without cause and without reasonable
notice, or outside the ordinary process of the court. Such orders, entered without
jurisdiction, constitute an abuse of judicial power.
102 Nev. at 560, 729 P.2d at 1334 (emphasis added).
Similarly, Judge Schouweiler, with no criminal or civil proceeding before him, proceeded
to issue an order purporting to (1) contain findings of corruption against the district attorney,
Mills Lane; (2) based upon such unilateral findings, disqualify and enjoin the district attorney
from acting; and (3) appoint a special prosecutor to act in the place of the district attorney. As
we held in Cunningham, because nothing remotely resembling a proper order had been
issued and served upon [Mr. Lane], in regard to any proper proceeding, Judge [Schouweiler]
had no personal jurisdiction whatever over [Lane].
By statute in Nevada, NRS 252.080, the district attorney is the public prosecutor within the
county of his or her election. Although a district judge empanels a grand jury and has
supervisory powers in connection therewith, the judge is not authorized to assume or usurp
the functions of the elected public prosecutor. In Nevada, the matter of the prosecution of
any criminal case is within the entire control of the district attorney. Cairns v. Sheriff, 89
Nev. 113, 115, 508 P.2d 1015, 1017 (1973). It is also clear that the district court does not
have supervisory powers over the district attorney, and cannot dictate to the district attorney
how he is to exercise his discretion or perform his functions. Under Nevada law, NRS
228.120(2), the attorney general has supervisory powers over the district attorneys.
Procedurally, if Judge Schouweiler received evidence indicating the district attorney had
concealed evidence of serious crime in order to frustrate prosecution, the judge should have
presented such evidence to the attorney general. The attorney general, under his supervisory
powers, could have investigated the matter and, if convinced of wrongdoing, taken it to a
grand jury under NRS 22S.120{1).
104 Nev. 427, 457 (1988) Lane v. District Court
under his supervisory powers, could have investigated the matter and, if convinced of
wrongdoing, taken it to a grand jury under NRS 228.120(1). As it is, the judge invoked his
own jurisdiction, listened to himself as complainant and then adjudicated the matter as judge
in issuing the order. This type of procedure must, in my opinion, be soundly condemned as an
intolerable abuse of judicial power. If judges, without a case or proceeding before them that
properly invokes the court's jurisdiction, can simply issue orders upon ex parte reports that
affect lives as seriously as the order at issue, then our judicial system has lost all contact with
concepts of procedural due process cherished so long in this state and nation.
As observed by the Dostert court, if the elected public prosecutor is unfit to prosecute a
case, the public has a right to know why. And that question cannot be answered by a district
court judge who invokes his own jurisdiction sua sponte in order to judge the merits of a
cause in which the judge is also the complainant.
1

Finally, I shall not unnecessarily prolong this concurrence by analyzing the due process
violation resulting from the Schouweiler order. Suffice it to say that the complex of factors
involving defamation of character, denial of statutory rights and privileges of office, and the
appointment of another to act in his stead, all without notice or an opportunity to be heard,
constitutes a denial of procedural due process which also renders the order void.
II. The Facts
As I have stated previously, I do not consider it either appropriate or within the
constitutionally authorized powers of this court to weigh, characterize and draw inferences
from the facts reflected by the grand jury transcript, newspaper stories and the invalid order
issued by Judge Schouweiler. Simply stated, there have been no relevant findings of facts by
a duly authorized tribunal or fact-finder in this matter.
____________________

1
In Dostert, the circuit court judge, acting on an ex parte contact, concluded that the prosecuting attorney had
violated the Code of Professional Responsibility, had evinced an unwillingness to prosecute, and was motivated
by retribution. The court said that when the prosecuting attorney committed ethical violations it was the
responsibility of the judge to report the matter to the appropriate state bar committee, and that attorney discipline
was the sole responsibility of that committee and the Supreme Court of Appeals of West Virginia. 260 S.E.2d at
285, n.8. In the instant case the same approach would apply if the district attorney had committed ethical, as
opposed to criminal, violations. Moreover, if Judge Schouweiler has abused his judicial office without
evidentiary foundation, the district attorney's remedy exists in the filing of a complaint with the commission on
judicial discipline.
104 Nev. 427, 458 (1988) Lane v. District Court
tribunal or fact-finder in this matter. The findings of the order would not even pass muster
in an inquisitional system, let alone the adversarial system of this state and nation. The order
itself emphasizes that the guilt or innocence of the grand jury targets is not an issue.
Nevertheless, the majority has drawn factual inferences from the grand jury proceedings that
tend to supply credence to the void order. For example, the majority contends that the
respondent judges' [I have already noted the error in attempting to credit Chief Judge Robin
Wright with endorsing or participating in the contents of the order] determination is well
founded that complaints tendered to the district court by victims of alleged sexual assaults,
and by two investigating officers of the Washoe County Sheriff's Department, warrant
judicial inquiry. In support of such a characterization and conclusion, the majority proceeds
as follows:
(a) The record reflects without contradiction that the district attorney's deputy who
presented the case to the grand jury did so in a manner that, as a natural consequence,
precluded the grand jury from knowing about or considering the testimony of the
investigating officers;
My response: This finding of fact and conclusion represents, in my view, a one-sided
perspective of the evidence. The affidavit of Chief Deputy District Attorney John Aberasturi
who, in contrast to a finding by Judge Schouweiler that the evidence indicates the case was
handled by Mr. Mills Lane and Mr. John Aberasturi, was the only representative of the
district attorney handling the case, avers that he informed grand jurors of the nature of the
potential testimony of the investigating officers. Although Aberasturi avers that this
information was given to the grand jurors informally and after they had returned a finding of
no true bill, he also stated that the grand jurors indicated the testimony would have made no
difference. If Aberasturi is truthful in his averment, there was no attempt to conceal this
information from grand jurors who, presumedly, upon hearing what the officers would say,
could have recalled their finding and proceeded with the hearing, at least upon petition to the
court. In any event, this is a factual dispute that can be properly resolved only upon evidence
presented in a district court proceeding where all parties may be heard. Until such time as a
proper evidentiary hearing occurs, I suggest that this court has no proper role in wrestling
with alleged facts and drawing inferences therefrom.
(b) In presenting the case to the grand jury, the district attorney's deputy also depreciated
the prosecution's case by multiple violations before the grand jury of Nevada's rape shield
law,' NRS 50.090 and 48.069; My response: I shall address this non-briefed, non-issue in
detail later.
104 Nev. 427, 459 (1988) Lane v. District Court
My response: I shall address this non-briefed, non-issue in detail later. I note at this juncture,
however, that it first formally surfaced in Judge Schouweiler's Answer to the district
attorney's Petition For Reconsideration Or For Rehearing filed on March 7, 1988. The
respondent judge cited only the Nevada statute, NRS 50.090, as authority for his assertion
that the district attorney violated Nevada's rape shield law. Even if it could be accepted, for
purposes of argument, that the rape shield law was somehow violated, I am at a loss to
understand the relevance of such an assertion both as to the Schouweiler order that describes
the only issue as being whether Lane withheld evidence of sexual assault, and the single issue
before this court, i.e., whether Judge Schouweiler's order is valid or effective for any purpose.
Suffice it to say here that I strongly disagree with the majority's finding of multiple
violations of Nevada's rape shield law.
(c) The district attorney's deputy depreciated and prejudiced the prosecution's case by the
introduction of hearsay testimony which, as a natural and apparently intended consequence,
diminished the credibility of the complaining witnesses.
My response: Again, my brethren in the majority have parsed the grand jury transcript and
reached a factual determination that the deputy district attorney apparently intended to
diminish the credibility of the complaining witnesses. I have read the entire record and
certainly did not find a sufficient and reliable evidentiary basis for joining in such a
determination. Nor is it my function or theirs to make such a determination in the matter
before us. If this court were to begin with the premise that the deputy district attorney was
presumedly performing his duties in good faith absent clear evidence to the contrary, the
record before us would simply not justify the majority's attribution of corruption in his
presentation to the grand jury. I will illustrate this point further as I address the majority's
recital of facts and its apparent belief concerning the inadmissibility of hearsay testimony.
As previously observed, I do not consider it proper or relevant for this court to selectively
recite facts, draw inferences or reach conclusions from the transcript of the grand jury
proceedings. Because the majority has done so, I shall also recite from the record, using the
pseudonyms adopted by my brethren.
On February 22, 1986, at approximately 2:00 a.m., Jane and Mary entered Nye Hall, a
coeducational dorm at UNR. Both had been drinking, but Mary, by her own admission, was
intoxicated at a level of eight on a scale of one to ten. The young women entered Nye Hall
and went directly to the men's side of the dorm on the second floor. After entering one of the
men's rooms and visiting for a time, the two went down the hall to another room, where the
door was closed and the lights were out.
104 Nev. 427, 460 (1988) Lane v. District Court
where the door was closed and the lights were out. The young women admitted themselves,
awakened the two young men in the room, and visited for a time with them. Thereafter, Jane
and Mary returned to the first room where the alleged sexual assaults occurred. Jane, who was
wearing only a bra beneath her dress, engaged in sexual intercourse with one of the targets
with whom she had enjoyed a previous romantic relationship. Jane protested, however, when
her partner eventually suggested that they switch to Mary and another young man who had
completed intercourse with Mary. The switch was nevertheless accomplished and Jane
described the second act of intercourse as something she didn't want from a young man who
was a friend, but not a romantic friend. Jane also characterized the friend's behavior during
and after the episode by saying he wasn't a gentleman at all. After leaving Nye, Jane
testified that she went straight to her apartment, got into bed and went to sleep. Jane also
testified that she didn't call the police until five days later, when another football player (Roe)
called her and said I heard you guys were porn queens a couple days ago. After the call,
Jane and Mary went back to Nye Hall where they eventually encountered one of the targets.
Jane testified as follows concerning that encounter:
Q. What did you say to him?
A. I made some threats to him.
Q. Like what?
A. Like he better get a lawyer.
Q. Did you tell him that?
A. Because what was running through my mind was I couldn't believe what he did to
me, and I couldn't believe what happened that night. And I didn't really know how to
deal with it. And I wasn't looking at itI wasn'twhen I first looked at the situation, I
was thinking Okay, these are friends who are, you know, they arehow do you
explain? I wasn't intending to make an issue out of it until I talked to my mother and
told my mother what happened.
Q. When did you tell your mother?
A. Right after I left Nye Hall.
Q. Now you saidwhen you said to [target] You better get a lawyer, what did you
mean? Were you saying that because you were mad at him, just as a threat?
A. I wanted him mostly to keep his mouth shut. It was really hard for me to believe
that he would walk around telling people what he did. Because what he did was not
right to me. And I had a hard time believing.
Mary, who was allegedly victimized by more of the targets than Jane, also testified in part
as follows; Q.
104 Nev. 427, 461 (1988) Lane v. District Court
Q. Now you reported this to the police late Wednesday night [the alleged sexual
assaults occurred the previous Saturday] right?
A. Yes.
Q. What brought you to call the police that night?
A. I didn't want to call the police. I just wanted to go to the doctor, make sure I
wasn't pregnant.
Q. Did you go to the doctor's?
A. Yes.
Q. Did you tell the doctor what happened?
A. [Jane's] dad did.
Mary also testified concerning the call from Roe that had prompted Jane to go to the
police. Mary, who said that she had a romantic relationship with Roe, indicated that Roe was
upset with her.
Roe also testified before the grand jury in part, as follows:
Q. Do you know [Mary]?
A. Yes, I do.
Q. Have you had a romantic relationship with [Mary]?
A. I wouldn't call it romantic. Maybe sexual.
* * *
Q. Did you at some time hear about the happenings of that Saturday morning?
A. Yes.
Q. How did you hear about it?
A. I heard through a couple other guys on the floor. . . .
Q. Was it kind of the hot news on the floor?
A. People were talking about it, yes.
* * *
Q. After the police talked to you, [Mary] called you?
A. . . . She [Mary] said she felt she owed me an explanation of what had happened. I
told her she didn't owe me anything. And I did inquire about it, asked her Why are you
guys lying about this and trying to get [target] and [target] and all them in trouble?
Q. What did she say?
Q. She said itI said Why are you lying about and saying they raped you? Was
my direct statement. She said They did not rape us. I feel they took advantage of us.
Q. They took advantage of us?
A. That is what she said.
Another witness who was present for a time with several other young men and Jane and
Mary, testified as to some sexually provocative statements Mary made to him prior to his
leaving the room. I am not moved to extend my efforts further concerning factual assertions
contained in the record but which continue to have no relevance in this original writ
proceeding.
104 Nev. 427, 462 (1988) Lane v. District Court
factual assertions contained in the record but which continue to have no relevance in this
original writ proceeding. Suffice it to say that the record presently before this court reflects a
telling basis for the grand jury's refusal to issue a true bill. I therefore consider it inappropriate
for this court to characterize the performance of the deputy district attorney in any pejorative
light. I accordingly disapprove of such conclusory characterizations by the majority as
prosecutorial omissions, prior failures of the prosecution, whether the district attorney's
office will proceed properly with the case in the future, and deputy's derelictions. Such
aspersions have no bearing on the issue before us and can serve only to create predilections
on the part of a successor judge who is charged with the obligation of judging the matter
impartially.
III. Nevada's Rape Shield Law
I respectfully suggest that this is another example of gratis dictum included in the majority
opinion. The issue has no relevance to the issuance of prohibition by this court, was never
briefed, and has no relationship to the issue of prosecutorial corruption raised in the
Schouweiler order. Moreover, the majority has shepherded the issue to the point of
ostensibly settling the law as to the applicability of Nevada's rape shield statute to the state
and a grand jury proceeding. I respectfully suggest that my brethren have created or yielded to
a red herring, have incorrectly interpreted the statute and have, in any event, produced dicta
that is non-binding as to this case or any other future case.
As noted, because the rape shield law is not an issue in this proceeding for an original writ,
the parties have not briefed the matter or presented authorities to this court upon which an
enlightened determination could be made. Nevertheless, the majority has elected to address
the rape shield issue as if it were a relevant aspect of the prosecutor's presentation to the
grand jury. Although my thoughts on the issue will have no more legal weight or effect
than those of the majority, I feel compelled to counterbalance what I consider to be a
unilateral view of the subject.
The purpose of the grand jury has been described as follows: to investigate possible
offenses and to act as an independent barrier which protects the innocent from oppressive
prosecution. Losavio v. Kikel, 529 P.2d 306, 310 (Colo. 1974). It is also said that the grand
jury proceeding is an ex parte investigation to determine whether a crime has been
committed and whether criminal proceedings should be instituted against any person."
104 Nev. 427, 463 (1988) Lane v. District Court
person. State v. Bell, 589 P.2d 517, 519 (Haw. 1979). Historically, the grand jury has also
been viewed as a safeguard in protecting citizens against unfounded criminal prosecutions.
State v. O'Daniel, 616 P.2d 1383, 1386 (Haw. 1980). Grand jury proceedings are secret (NRS
172.245) except under limited exceptions. Reasons for secrecy have been iterated by this
court as:
(1) To prevent the escape of those whose indictment may be contemplated. (2) To
insure the utmost freedom to the grand jury in its deliberations and to prevent persons
subject to indictment, or their friends, from importuning the grand jurors. (3) To
prevent subornation of perjury or tampering with the witnesses who may testify before
the grand jury and later appear at the trial of those indicted by it. (4) To encourage free
and untrammeled disclosures by persons who have information with respect to the
commission of crimes. (5) To protect an innocent accused, who is exonerated, from
disclosure of the fact that he has been under investigation.
Shelby v. Sixth Judicial Dist. Court, 82 Nev. 204, 210, 414 P.2d 942, 945 (1966).
It is thus seen that the grand jury functions in secrecy for the purpose of determining
whether a crime has been committed and whether the target should be charged. Additionally,
the grand jury is to secure the innocent from oppressive prosecution. In connection with the
latter concern, Nevada statutory law, NRS 172.145(2), and this court have mandated the
district attorney to disclose exculpatory evidence to a grand jury. Sheriff, Clark County v.
Frank, 103 Nev. 160, 734 P.2d 1241 (1987). And in Frank, we implicitly determined that
exculpatory evidence is that which has a tendency to explain away the charge against the
target of the grand jury's investigation. Id. at 164, 734 P.2d at 1244. Moreover, we also noted
that the mission of the grand jury is to clear the innocent, no less than to bring to trial those
who may be guilty. Id.
I reiterate that I have approached the facts with reluctance for I certainly have no interest in
preventing prosecution or further investigation if either are warranted. In reading and
re-reading the transcript, I have substantial difficulty reading allegations of sexual assault and
kidnapping into the statements of the young women. It reads more like the statements of two
young women who were inviting sexual activity, but perhaps with less enthusiasm from one
young man than with another. The one victim testified that she mostly wanted one of the
targets to keep his mouth shut. The other, who admitted she did not want to call the police,
also said, according to the testimony of Roe, that the targets "did not rape us."
104 Nev. 427, 464 (1988) Lane v. District Court
targets did not rape us. Given the equivocal testimony of the complaining witnesses, it was
entirely appropriate that the grand jury hear the evidence bearing on the prior sexual activities
of the young women in the UNR setting.
Nevada's rape shield statute, NRS 50.090, by its terms has no application to the prosecutor
and therefore has no bearing on this matter even if it were an issue in this original writ
proceeding. The statute reads as follows:
In any prosecution for sexual assault or statutory sexual seduction or for assault with
intent to commit, attempt to commit or conspiracy to commit either crime, the accused
may not present evidence of any previous sexual conduct of the victim of the crime to
challenge the victim's credibility as a witness unless the prosecutor has presented
evidence or the victim has testified concerning such conduct, or the absence of such
conduct, in which case the scope of the accused's cross-examination of the victim or
rebuttal shall be limited to the evidence presented by the prosecutor or victim.
(Emphasis added.)
The language of the statute unambiguously prohibits presentation of evidence of a victim's
previous sexual conduct only by the accused. Moreover, the statute by clear implication
acknowledges that the prosecutor may present such evidence. Similarly, NRS 48.069, cited by
the majority, applies only to the accused and has no constraints whatsoever on the prosecutor.
Nor does the majority's attempt to exclude rape shield evidence on grounds that a grand jury
proceeding is not a prosecution make any sense. The rape shield law simply does not apply to
the prosecutor in trial or during any other proceeding. The majority's view that because a
grand jury proceeding is not a prosecution, the exceptional evidence under NRS 50.090 and
48.069 could not become legal evidence within the meaning of NRS 172.135(2) is also
flawed. Again, such exceptional evidence applies only to evidence sought to be introduced by
an accused. It has no bearing on the right of a prosecutor to introduce evidence of a victim's
prior sexual history. Moreover, none of the cases or the law review article cited by the
majority supports its position. In each of the cases, People v. McKenna, 585 P.2d 275 (Colo.
1978), Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), State v. Hudlow, 659 P.2d 514
(Wash. 1983), the issue concerned only the right of a defendant to present evidence of a
victim's prior sexual history. In Hudlow, the prosecution actually elicited some evidence of a
victim's knowledge of sexual terms and the court never questioned the prosecutor's right to do
so. The only issue on the point was the extent to which the prosecutor had opened the
door to further inquiry on cross-examination by the defendant.
104 Nev. 427, 465 (1988) Lane v. District Court
was the extent to which the prosecutor had opened the door to further inquiry on
cross-examination by the defendant. Similarly, in McKenna there was no indication that the
prosecution was limited by Colorado's rape shield statute even though the Colorado statute is
not at all similar to Nevada's statute. Thus, the court observed that rather than completely
denying the defendant's rights in order to protect the victim's privacy interest, the statute
strikes a balance by conditioning admission of evidence of the victim's sexual history on the
defendant's preliminary showing that it is relevant. 585 P.2d at 279 (emphasis added).
The majority's reference to Summitt is even more puzzling. I dissented in Summitt because
I was convinced that the Summitt majority had unnecessarily attenuated Nevada's rape shield
statute in favor of an accused's right to confront a complaining witness in order to show bias.
In dissent, I stated as follows:
Another consequence of the majority ruling is that it actually violates the spirit of the
rape shield law by accommodating a general attack on the credibility of the
child-victim. In effect, the majority holds that the child's prior experience as a
four-year-old victim of sexual assault in the form of fellatio may be admitted as a basis
for inferring that she contrived a charge of cunnilingus against Summitt. We are thus
propelled into the concept that sexual history in general, as opposed to specific
instances of sexual experience in particular, may be introduced to attack the credibility
of a prosecutrix. It is clear that such a proposition substantially expands both the
holding and the ratio decidendi of State v. Howard, supra. It also appears, given the
tender age of the prosecutrix in the instant case, that the proposition created by this
decision would apply in virtually all instances involving a child-victim whose sexual
history is limited to an experience of sexual assault occurring at age four or above. I
am simply unable to reconcile the majority ruling with the necessity of
accommodating the competing interests of complaining witnesses and defendants by
construing and applying the rape shield law so as to uphold the constitutional rights of
defendants, while creating the least possible interference with the legislative purpose
reflected in the statutes. I therefore conclude that the majority position is in conflict
with the basic purpose and spirit of Nevada's rape shield statute.
101 Nev. at 165-66, 697 P.2d 1278-79. In short, Summitt concerned itself with an expansive
right of a defendant to circumvent Nevada's rape shield statute and had nothing whatsoever to
do with the right of a prosecutor to present evidence of a victim's prior sexual history.
104 Nev. 427, 466 (1988) Lane v. District Court
prior sexual history. The point is illustrated by referring to the majority's rationale for
reversing the conviction in Summitt:
In the instant case the defendant does not seek to impeach the credibility of the
complaining witness by a general allegation of unchastity. Rather, the specific evidence
was offered to show knowledge of such acts rather than lack of chastity. We agree with
the ruling of the Supreme Court of New Hampshire in State v. Howard, supra, 426
A.2d at 462:
We believe that the average juror would perceive the average twelve-year-old girl as
a sexual innocent. Therefore, it is probable that jurors would believe that the sexual
experience she describes must have occurred in connection with the incident being
prosecuted; otherwise, she could not have described it. However, if statutory rape
victims have had other sexual experiences, it would be possible for them to provide
detailed, realistic testimony concerning an incident that may never have happened.
To preclude a defendant from presenting such evidence to the jury, if it is otherwise
admissible, would be obvious error. Accordingly, a defendant must be afforded the
opportunity to show, by specific incidents of sexual conduct, that the prosecutrix has
the experience and ability to contrive a statutory rape charge against him.
Id. at 163-64, 697 P.2d at 1377 (footnote omitted).
The law review comment cited by the majority, Comment, EvidenceAdmissibility of the
Victim's Past Sexual Behavior Under Washington's Rape Evidence LawWash. Rev. Code
9.79.150 (1976), 52 Wash.L.Rev. 1011, 1033 (1977), also has no bearing on the non-issue
before us. It neither states nor suggests that the dissimilar Washington statute operates as any
form of constraint on the prosecution.
There is good reason why the majority has produced no law or precedent supporting their
novel proposition. A prosecutor's function is to achieve justice, not secure a prosecution or
conviction. If justice demands a prosecution or conviction then the prosecutor must be
diligent in seeking such a result. But in doing so, a prosecutor is not privileged to pre-judge
guilt or innocence and manipulate or conceal evidence to achieve victory according to his or
her predilection. On the other hand, under our adversary system, defense counsel is expected
to assert every lawful and ethical effort to make certain that prosecutions or convictions occur
lawfully and in accordance with the prosecution's heavy burden of proof. Thus, under
statutory law and the precedents of our court, a prosecutor is obligated to present exculpatory
evidence to a defendant for his or her use at trial, and to the grand jury for the
consideration of grand jurors in their determination of whether to indict.
104 Nev. 427, 467 (1988) Lane v. District Court
dence to a defendant for his or her use at trial, and to the grand jury for the consideration of
grand jurors in their determination of whether to indict. Nevertheless, the majority concludes
that if a prosecutor is permitted to present sexual history evidence of an alleged victim before
grand juries while as here the complaining witnesses are afforded no chance to explain or
deny, it is likely few, if any, indictments would be returned. I disagree with the conclusion
for several reasons. First, in the instant case, the grand jury was perfectly free to recall Jane
and Mary to explain or deny what other witnesses had said concerning them. There is not the
slightest evidence that the deputy district attorney would have attempted to thwart such a
request. Secondly, it would be rare, indeed, when a prosecutor felt ethically compelled to
present or permit the presentation of such evidence. In the instant case, we are not called upon
to determine whether the deputy district attorney exhibited the highest level of competence in
moving the grand jury toward an indictment. Rather, we are called upon to determine whether
a district court judge has jurisdiction to issue an order finding that a district attorney has
manipulated the grand jury into a failure to indict by purposely and criminally concealing
evidence, and thereafter disqualifying the district district attorney and appointing a special
prosecutor to act in his steadall without notice and an opportunity to be heard. Finally, this
court has no formal appellate concern over prosecutorial incompetence in failing to convince
a grand jury to indict; it does, however, have legitimate appellate concern over the subject
matter of the nature set forth in the Schouweiler order when such orders have issued by a
court having jurisdiction and in accordance with the demands of fundamental due process. It
is therefore unrealistic to conclude that few, if any, indictments, [will] be returned, because
the situation of indictment frustration resulting from a prosecutor's corruption will be rare,
and when discovered, will be effectively dealt with by the executive and judicial branches of
government. I am unwilling to assume that Mr. Lane or any of our other district attorneys will
tolerate incompetence among their deputies and that failure to present cases effectively before
grand juries, magistrates or in trial will be condoned or disregarded.
Finally, I find difficulty relating to the majority's treatment of the prosecutor's obligation to
present exculpatory evidence. Roe's testimony indicating that Mary told him that the targets
did not rape us is clearly exculpatory and the prosecutor's failure to present it here would
have been far more egregious than the prosecutorial omission in the Frank case. The majority
has not specifically identified the foregoing testimony as part of the general hearsay
complaint contained in their opinion but have impliedly impugned its propriety.
104 Nev. 427, 468 (1988) Lane v. District Court
impliedly impugned its propriety. I therefore suggest that the hearsay statement attributed by
Roe to Mary is in any event admissible as an inconsistent statement. Although it is difficult to
emphatically characterize Mary's grand jury testimony as inculpatory, she was an alleged
victim of sexual assault and was testifying in the supportive role of complaining witness. A
number of courts have agreed that: Inconsistency in effect, rather than contradiction in
express terms, is the test for admitting a witness' prior statement. People v. Green, 479 P.2d
998, 1002 (Cal.), cert. dismissed, 404 U.S. 801 (1971). See also U.S. v. Barrett, 539 F.2d 244
(1st Cir. 1976); State v. Whelan, 513 A.2d 86 (Conn.), cert. denied, 107 S.Ct. 597 (1986).
There are other bases for admitting the testimony that needn't be discussed further at this
point. Suffice it to say that none of the prosecutor's supposed derelictions or omissions can be
faulted as violations of Nevada's rape shield statute. If the majority desires to impose
constraints on prosecutors as the rape shield statute does on those accused of committing
crimes, then resort to the legislature would be appropriate. In the meantime, there are few
reasons to be concerned about the rare circumstance when a prosecutor would feel compelled
to provide rape shield type information to grand juries; and when and if the occasion arises,
the secret nature of the proceeding would provide a major safeguard to a victim's reputation.
IV. Hearsay Diminishing Victims' Credibility
The majority criticizes the prosecutor for permitting the hearsay testimony of two persons,
Doe and Roe, who were not present at the time of the alleged assaults. I have previously
covered part of Roe's testimony concerning his telephone conversation with Mary. Because
the prosecutor is not constrained by the rape shield law, Mr. Aberasturi committed no
violation of law in asking Roe about the nature of his relationship with Mary. Roe's testimony
concerning his sexual relationship with Mary explains why she called him and indicated she
owed him an explanation. The testimony thus provided context and reason to the
conversation as opposed to an attempt to besmirch Mary's character or credibility.
Doe was present in the room with several other young men and Jane and Mary before the
alleged assaults occurred. He did not know either of the complaining witnesses personally,
and left the building prior to the time of the alleged incidents. He testified, however, that as
he walked into the room, Mary, who was real intoxicated, said You know, you got a nice
ass. Doe said he was just messing around with her because she was real drunk, just tapping
her. Doe testified that Mary then said to him, You don't want to mess with anybody that
gives the best h--- in Reno."
104 Nev. 427, 469 (1988) Lane v. District Court
don't want to mess with anybody that gives the best h--- in Reno. Unquestionably, the
testimony was demeaning to Mary, but it did reveal a mind state that tended to explain why
the young women were present in the men's side of Nye Hall at such an early hour. NRS
51.105 excepts from the hearsay rule statements of a declarant's then existing state of mind or
emotion such as intent, plan, design, motive or mental feeling.
In any event, I reemphasize my frustration over the majority's demeaning criticism of the
deputy district attorney's presentation to the grand jury. As this court has previously held: It
is not the province of the court to sit in review of the investigations of a grand jury as upon
the review of a trial when error is alleged. . . . Ex parte Stearns, 68 Nev. 155, 159, 227 P.2d
971, 973 (1951). We have also held that even though inadmissible hearsay testimony may
have been adduced before the grand jury contrary to NRS 172.260(2), still if there is the
slightest sufficient legal evidence and best in degree appearing in the record the indictment
will be sustained. Robertson v. State, 84 Nev. 559, 561-62, 445 P.2d 352, 353 (1968),
reaffirmed and cited in Frank, 103 Nev. at 165, 734 P.2d at 1245.
To my knowledge, this court has never involved itself in considering the competence of a
prosecutor in failing to secure an indictment. I know of no basis for so doing in the instant
case. Whether Mr. Aberasturi erroneously permitted hearsay expressions elicited by grand
jurors or from his own methodology in questioning witnesses is simply not an issue before
this court.
V. Notice And Opportunity To Be Heard
The district attorney, in his original Petition For Writ Of Prohibition and his affidavit filed
in support thereof, advised this court that the Schouweiler order had been issued and filed
without notice and an opportunity to be heard. Indeed, Mr. Lane's affidavit details at length
how the first time he heard of the order and obtained a copy thereof was from the news
media. The order, which was filed at 4:55 p.m. on February 12, 1988, had somehow been
immediately distributed to the news media but had not been delivered to the district attorney.
My brethren in the majority deprecate the district attorney for not having provided legal
authority demonstrating that a district attorney is entitled to notice and an opportunity to be
heard prior to being enjoined from investigating a particular case. With profound respect for
my colleagues, I suggest that this court has, on numerous occasions, granted relief on the
basis of far less information and issues far less compelling. Indeed, Judge Schouweiler's
belated reference to Nevada's rape shield law was supported only by reference to the statute
itself which, as I have therefore demonstrated, utterly fails to sustain his position on the
point.
104 Nev. 427, 470 (1988) Lane v. District Court
have therefore demonstrated, utterly fails to sustain his position on the point. And yet the
majority researched and produced nonsupportive case authorities attempting to justify the
honorable judge's gratuity without a whisper about the judge's complete lack of authorities on
the point. Surely this court could have cheerfully accorded the same respect to the district
attorney on so clear a point as a due process failure to provide notice and an opportunity to be
heard. Moreover, this court was surely familiar with its own recent decisions involving far
less engregious circumstances in the Collier and Cunningham cases discussed above.
For the reasons hereinbefore discussed in part, I unreservedly concur with the result
reached by the majority in granting prohibition and conditionally concur in remanding the
matter for a hearing before another judge. Prohibition is appropriate to recognize and deal
with the void order and Judge Schouweiler's ongoing activities with the illegitimate special
prosecutor. It seems clear, however, that because Judge Schouweiler was without jurisdiction
in the premises, a judge hearing the matter on remand would be equally without jurisdiction.
And yet, to merely issue prohibition and declare the order void would be unfair to the district
attorney who stands publicly accused and essentially found guilty of criminal misconduct.
A healthy judicial conscience could not, in my judgment, countenance leaving the district
attorney in such a state of limbo. Moreover, if indeed a rightful criminal prosecution has been
thwarted, the demands of justice should be forthrightly secured.
Inasmuch as Judge Schouweiler has issued both accusations and findings concerning the
district attorney, upon remand I would treat Judge Schouweiler as the complainant and use
his void order as a complaint for the purpose of providing a case upon which jurisdiction
could attach in the determination of the district attorney's status by a different judge.
Otherwise, I have grave difficulty with the jurisdictional basis for a hearing on remand, and
can concur only in the issuance of prohibition.
Mowbray, J., concurs.
Gunderson, C. J., concurring and dissenting:
I would deny the petition for rehearing, in toto, for at least two reasons:
First, as my brothers Springer and Young have noted, the District Attorney originally
based his petition for a writ of prohibition, which we summarily denied, on the insupportable
legal premise that he is vested with sole control over the Grand Juryto the exclusion of any
District Court judgeand may, therefore, abuse the Grand Jury processes just however he
may deem fit.
104 Nev. 427, 471 (1988) Lane v. District Court
Only in the District Attorney's petition for rehearing did he begin to retreat from this
untenable position, and begin to tender seriously the claim that the District Court should have
allowed him notice and an opportunity to be heard before invoking its supervisory powers.
Therefore, I suggest it would be appropriate to deny his petition for rehearing on the well
established basis that the petition does not, as it should, direct attention to matters of fact or
law earlier relied upon but overlooked by this Court. Stanfill v. State, 99 Nev. 500, 501, 665
P.2d 1146, 1147 (1983). To the contrary, the petition for rehearing improperly seeks to argue
points heretofore not properly presented and supported, and also inappropriately seeks to
reargue points already heard and decided. Id; NRAP 40(c)(1). See also In re Herrmann, 100
Nev. 149, 151, 679 P.2d 246, 247 (1984).
In my opinion, this Court should hold the District Attorney's office to the same standard of
competence which would be imposed upon private attorneys. And, from my experience, I am
persuaded this Court would not ordinarily recognize a petition for rehearing that so
inadequately, and belatedly, raised issues different from, and at odds with, the theory
originally tendered.
Second, assuming we should consider the issue of notice which the District Attorney now
so belatedly seeks to raise, I do not think the District Judge needed to notify the District
Attorney before initiating an inquiry into the complaints of the police officers and apparent
victims, who evidently invoked his assistance in frustration and outrage. I believe the District
Judge, acting in his supervisory capacity over the Grand Jury, correctly acted without notice
by launching an investigation into the complaints of the police officers that the prosecution
had inappropriately manipulated the Grand Jury. The police and the alleged victims have
directed attention to ample evidence supporting their concerns, and warranting further
inquiry.
The suggestion has been tendered that the District Judge somehow acted unfairly because,
before the District Attorney received his copy of the order in the mail, the judge allowed the
press access to his order appointing an investigator. I see nothing in this conduct to establish
that the District Attorney has been the subject of any unfair imposition. Indeed, in this Court,
we follow exactly the same practice as did the District Judge. Upon the filing of a decision,
this Court immediately supplies copies to all members of the local capitol press corps; the
attorneys commonly receive their copies later, by mail. Of course, an attorney is not
prejudiced by this practice because, so long as a matter is pendingas it is, until all avenues
of review are endedhe or she has no right to comment publicly in any way which may
prejudice the administration of justice.
104 Nev. 427, 472 (1988) Lane v. District Court
the administration of justice. SCR 177; Williams v. State, 103 Nev. 106, 734 P.2d 700
(1987).
It is only because the particular District Attorney involved in this case has so often
previously been allowed to ignore the rules of professional conductby repeatedly calling
illicit press conferences, and repeatedly commenting on pending litigationthat anyone can
imagine he was victimized because the press received copies of the order before he did.
Apparently, some notion exists that the District Attorney has a prescriptive right to disregard
the rules of professional conduct, and that, if he had received a copy of the District Judge's
decision before members of the press did, he could have prepared better for his improper
commentaries to media representatives.
In any case, the cavil is beside the point. I believe that the irregularities identified by the
police and the alleged victims fully warrant the inquiry ordered by the District Judge. For me,
it is hard to believe that the District Attorney has not heretofore known of, and approved, the
conduct of his deputy. If he did not know previously, the District Attorney certainly learned
of his deputy's actions during the course of these proceedings; however, attempts to defeat the
concerns of the police have continued. Never has the District Attorney offered to go back and
properly present to the Grand Jury the evidence assembled by the police, which was withheld
from the Grand Jury, while, at the same time, other evidence of an inappropriate character
was presented to defeat their case. I cannot imagine what excuse can be tendered to any
substitute judge that would inspire belief in the District Attorney's current readiness to
prosecute the case properly, after all that has heretofore been done to undercut a correct
prosecution.
Nonetheless, since I feel inquiry into the complaints tendered by the police must now
move forward, I cast my vote in support of the action designated by Justices Springer and
Young, thereby allowing the District Attorney an opportunity to vindicate the unusual
prosecutorial techniques of his office, if he can.
In conclusion, I note it is no longer acceptable to ignore the complaints of women
concerning sexual attacks, by the comfortable intonation of the notion that, by their prior
sexual conduct, they have asked for it, and have rendered themselves outlaws, beyond the
protections of judicial process.
1
The flow of history and precedent supports the Reno law
enforcement officers' perspective of this matter.
____________________

1
It is noteworthy that legislatures in other states have expressly provided for the application of rape shield
statutes to grand jury proceedings, see Mass. Ann. Laws ch. 233, 21B (Law. Co-op 1983), and preliminary
hearings, see Alaska Stat. 12.45.045 (1985); N.J. Stat. Ann. 2A: 84A-32.1-.3 (1976); Va. Code Ann.
18.2-67.7 (1981). Other courts, in the absence of an express statutory provision, have excluded evidence of prior
104 Nev. 427, 473 (1988) Lane v. District Court
and precedent supports the Reno law enforcement officers' perspective of this matter. The
difference between the views of the police, and the views of those who have guided the
prosecution, appear to me to lie at the heart of the current dispute.
____________________
sexual conduct in the preliminary hearing context under the rape shield statute, see People v. Jordan, 191
Cal.Rptr. 218 (Cal.Ct.App. 1983), or general evidentiary principles, see People v. Makela, 383 N.W.2d 270
(Mich.Ct.App. 1985).
____________
104 Nev. 473, 473 (1988) Graham v. Graham
ALICE A. GRAHAM, Appellant, v. RUSSELL
E. GRAHAM, JR., Respondent.
No. 17988
August 31, 1988 760 P.2d 772
Appeal from a judgment of the district court awarding property in a divorce proceeding.
First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Wife appealed from order of the district court entered in a divorce proceeding. The
Supreme Court held that: (1) husband's testimony was insufficient to overcome presumption
that deed of property from himself to himself and wife as joint tenants created a gift to the
wife, and (2) it was not an abuse of discretion to award the husband's business to him as his
sole and separate property.
Affirmed in part; reversed in part and remanded.
Guild & Hagen, Ltd., and Ann Morgan, Reno, for Appellant.
Richard S. Staub, Carson City, for Respondent.
1. Husband and Wife.
Transfer of title from husband to wife creates a presumption of gift; that presumption can be rebutted
only by clear and convincing evidence.
2. Evidence; Husband and Wife.
The opinion of either spouse is of no weight with respect to whether a transfer of title between them is a
gift; party who wishes to overcome that presumption may do so by resenting substantial evidence of
conduct, expressions, or intent at time of taking or during holding of real property.
3. Husband and Wife.
Husband's testimony that he did not intend deed from himself to himself and his wife as joint tenants to
have any effect until the time of his death was insufficient to overcome presumption of gift.
104 Nev. 473, 474 (1988) Graham v. Graham
4. Divorce.
Trial court did not abuse its discretion in awarding husband's business to him as his sole and separate
property where the business was financed by his separate property and he drew a substantial salary during
the marriage which was treated as community property.
OPINION
Per Curiam:
This is an appeal from a judgment awarding a decree of divorce and a division of property.
For the reasons set forth in this opinion, we reverse part of the judgment and remand for
further proceedings.
Appellant assigns as error the district court's award of the Grahams' residence to Russell
Graham as his sole and separate property. We agree. At the time of the marriage between the
parties in 1979, the residence was owned by Russell. However, he quitclaimed his interest in
favor of himself and Alice as joint tenants in 1984. The deed was promptly recorded.
[Headnotes 1, 2]
A transfer of title from husband to wife creates a presumption of gift. Todkill v. Todkill,
88 Nev. 231, 237, 495 P.2d 629, 632 (1972). This presumption can be rebutted only by clear
and convincing evidence. Furthermore, it is well established that the existence of a valid deed
in the form of joint tenancy raises a presumption that the parties intend to own the property as
joint tenants, which may be rebutted only by clear and convincing evidence. Neumann v.
McMillan, 97 Nev. 340, 629 P.2d 1214 (1981); Peters v. Peters, 92 Nev. 687, 557 P.2d 713
(1976). We have stated that the opinion of either spouse is of no weight. The party who
wishes to overcome the presumption may do so by presenting substantial evidence of
conduct, expressions or intent at the time of taking or during the holding of the real property.
Peters, supra, 92 Nev. at 692, 557 P.2d at 716.
[Headnote 3]
Russell Graham had the burden of proving that the deed did not create a joint tenancy at
the time it was prepared, signed and recorded. His only evidence is his testimony that he did
not intend the deed to have any effect until the time of his death. Russell's testimony is
nothing more than his opinion, which is insufficient to rebut the presumption of joint tenancy
created by the deed. The district court erred in finding that the presumption had thus been
rebutted by clear and convincing evidence.
104 Nev. 473, 475 (1988) Graham v. Graham
[Headnote 4]
Alice Graham further disputes the award of her husband's business to him as his sole and
separate property. We note that the business was financed by Russell's separate property, and
that Russell drew a substantial salary during the marriage which concededly was treated as
community property. We therefore decline to disturb the award of the district court. Alice
also complains that the division of the horse breeding partnership was erroneous in that some
of the smaller assets were not divided by the award. Upon remand, the district court should
re-examine its award to make certain that all of the assets have been divided. Finally, Alice
complains that her cost of obtaining an appraisal of the residence property was not
reimbursed to her. While we are reluctant to overturn a district court's decision regarding
divorce costs, we note that the basis for the denial was the court's decision that the residence
was Russell's separate property. Therefore, the court may wish to reconsider the appraisal
reimbursement.
The judgment dividing property is affirmed in part, as noted above. The case is hereby
remanded with instructions to modify the judgment by providing that the deed executed in
1984 created a joint tenancy in the residence, and for further proceedings in accordance with
this opinion.
____________
104 Nev. 475, 475 (1988) Bradvica v. State
DAVID ARTHUR BRADVICA, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18112
August 31, 1988 760 P.2d 139
Appeal from judgment of conviction for carrying a concealed dangerous knife and
possession of an illegal weapon. Ninth Judicial District Court, Douglas County; Norman C.
Robison, Judge.
Defendant was convicted in the district court of carrying a concealed dangerous knife and
possession of an illegal weapon and he appealed. The Supreme Court held that: (1) term
dangerous knife is unconstitutionally vague and ambiguous; (2) knife which had no
handguards that would enable the user to stab without substantial risk to his hand was not a
dirk or dagger; and (3) knife whose sharpened portion of the blade was 1 15/16 inches in
length was not a switchblade.
Reversed.
104 Nev. 475, 476 (1988) Bradvica v. State
Terri Steik Roeser, State Public Defender, and Michael K. Powell, Chief Appellate
Deputy, Carson City, for Appellant.
Brian McKay, Attorney General, Carson City; Brent Kolvet, District Attorney, and
Michael Gibbons, Deputy District Attorney, Douglas County, for Respondent.
1. Weapons.
Phrase dangerous knife as used in statute prohibiting the concealed possession of a dirk, dagger or
dangerous knife is unconstitutionally vague and ambiguous. NRS 202.350, subd. 1(b)(2).
2. Weapons.
Knife which had a blade less than two inches along the sharpened edge and whose total length of the
opened blade was 5 3/8 inches, and which could not be used to stab without substantial risk to the hand of
the person using the knife, although the blade would lock into place, was not a dagger or dirk for
purposes of statute prohibiting concealed possession of dirks, daggers or dangerous knives.
3. Statutes.
Purpose of the rule of strict construction is to impose criminal liability only in cases where the accused
had adequate notice of the act forbidden.
4. Weapons.
For purposes of statute prohibiting the carrying of a switchblade, the blade of a knife is that portion
which is customarily sharpened from the tip of the knife to the tang or unsharpened extension of the blade
which forms the hinge connecting the blade to the handle. NRS 202.350, subd. 5(b).
OPINION
Per Curiam:
David Bradvica was stopped for a traffic violation on November 12, 1986. The officer
asked to see Bradvica's driver's license, and Bradvica replied that it had been recently lost
with his wallet. In attempting to verify Bradvica's statement that he had an Arizona license,
the officer was informed that Bradvica was licensed not in Arizona or Nevada but, rather, in
California. Furthermore, the California license had been suspended. Bradvica was then
arrested for driving without a valid license and for the traffic violation. The pat search of
Bradvica disclosed no weapons, and he was taken to jail. At the jail, he was searched more
thoroughly. His wallet and license were found along with a small knife which is the subject of
this appeal. Bradvica was charged and convicted for carrying a concealed, dangerous knife
(NRS 202.350(1)(b)(2)) and possession of an illegal weapon (NRS 202.350(1)(a)).
The knife Bradvica carried is a small pocket knife. The total length of the knife with the
blade open is 5 3/8 inches. The cutting portion, which springs open from the handle by
pressing a switch, measures 2 5J16 inches from tip to handle and less than two inches
along the sharpened edge.
104 Nev. 475, 477 (1988) Bradvica v. State
portion, which springs open from the handle by pressing a switch, measures 2 5/16 inches
from tip to handle and less than two inches along the sharpened edge.
[Headnote 1]
NRS 202.350(1)(b)(2) prohibits the concealed possession of a dirk, dagger, or dangerous
knife. The jury found that the knife which Bradvica was carrying was such a dangerous
knife. Bradvica contends that this term is unconstitutionally vague and ambiguous. We
agree.
Penal statutes are subject to strict construction, Sheriff v. Smith, 91 Nev. 729, 542, P.2d
440 (1975), and a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process, Sheriff v. Luqman, 101 Nev. 149,
155, 697 P.2d 107, 111 (1985) (quoting Connally v. General Construction Co., 269 U.S. 385,
391 (1926)).
This statute prohibits the mere concealed possession of a dangerous knife without regard
to the circumstances in which the knife was being used; therefore, guilt depends solely upon
the fact finder's construction of the term.
In Huebner v. State, 103 Nev. 29, 731 P.2d 1330 (1987), the defendant was convicted for
carrying a concealed dirk, dagger or dangerous knife. The defendant was carrying a
springloaded, pointed implement designed for stabbing, [that] was cleverly concealed within
the shell of what appeared to be a ball-point pen. 103 Nev. at 30, 731 P.2d at 1332. The
defendant admitted that the object was a weapon. Citing an established dictionary definition,
we suggested that such a weapon could be considered a dagger. 103 Nev. at 30 n.1, 731 P.2d
at 1331 n.1.
[Headnote 2]
We initially observe that the Supreme Court of California has held that an ordinary pocket
knife is not a dirk or dagger as a matter of law. Relevant factors to consider are handguards
and a blade which locks in place. People v. Bain, 489 P.2d 564 (Cal. 1971). Although the
blade of Bradvica's knife would lock into place, it had no handguards that would enable the
user to stab without substantial risk to his hand. Other than the fact that the blade locks into
an open position, this knife no more resembles a dagger or stabbing weapon than a penknife
carried by a Boy Scout.
The conviction cannot stand upon the term dangerous knife either. The term is so clearly
vague that individuals must guess as to its meaning without any objective, guiding factors.
Such a term cannot support the imposition of criminal liability.
104 Nev. 475, 478 (1988) Bradvica v. State
We next consider Bradvica's conviction for carrying an illegal weapon, a switchblade.
NRS 202.350(5)(b) defines a switchblade knife as a knife with a spring-blade or snap-blade
two or more inches long that is released automatically by a release mechanism.
Bradvica's knife released the blade by the press of a button. That fact is admitted. The
knife measured 2 5/16 inches from tip to handle, but the sharpened edge of the knife
measured less than two inches. Bradvica contends that the meaning of the term blade must
be strictly construed since it is not defined within the statute.
[Headnote 3]
Long ago in State v. Wheeler, 23 Nev. 143, 44 P. 430 (1896), this court clearly explained:
The effect of the rule of strict construction might almost be summed up in the remark
that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its
meaning which the canons of interpretation fail to solve, the benefit of the doubt should
be given to the subject, and against the legislature which has failed to explain itself.
Wheeler, 23 Nev. at 153-154 (quoting Endlich, Stat. Int., sec. 330). The purpose of this rule is
to impose criminal liability only in cases where the accused had adequate notice of the act
forbidden.
The statute fails to define the blade. However, Webster's Third New International
Dictionary defines blade, in part, as the cutting part of an instrument. . . . Thus, Bradvica's
contention has merit.
[Headnote 4]
Strictly construing the statute, we hold that the blade of such a knife is that portion
which is customarily sharpened from the tip of the knife to the tang, or the unsharpened
extension of the blade which forms the hinge connecting the blade to the handle. So defined,
the blade of Bradvica's knife measured 1 15/16 inches. Measuring under 2 inches, the knife
was not a switchblade as defined by the legislature.
Therefore, in accordance with the views expressed herein, we reverse the judgment of
conviction.
____________
104 Nev. 479, 479 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
THE STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF TRANSPORTATION,
Appellant, v. LAS VEGAS BUILDING MATERIALS, INC., a Nevada Corporation,
Respondent.
No. 18176
September 21, 1988 761 P.2d 843
Appeal from judgment, pursuant to a jury verdict, in a condemnation action. Eighth
Judicial District Court, Clark County; Thomas A. Foley, Judge.
Department of Transportation filed condemnation action to acquire property necessary for
construction of interstate. The district court entered judgment on jury verdict awarding
landowner $2,574,000, and State appealed. The Supreme Court held that: (1) landowner did
not make double valuation of land by separately valuing minerals and then adding that value
to market value of land; (2) evidence of proposed plans of city involving city's own flood
control program was not admissible; and (3) option to purchase adjoining land affected by
condemnation action was valuable right compensable in condemnation action.
Affirmed.
Brian McKay, Attorney General, James J. Rankl, Deputy Attorney General, Carson City,
for Appellant.
Kermitt L. Waters, Las Vegas, for Respondent.
1. Eminent Domain.
In condemnation action, existence of mineral deposits in or on land is element to be considered in
determining land's value; however, where property is not taken for purpose of obtaining minerals or as
ongoing business it is improper to appraise mineral deposit separately and add mineral value to value of
land.
2. Eminent Domain.
Landowner did not make double valuation of land by separately valuing minerals and then adding that
value to market value of land, where appraisers took position that there were no comparable sales to
subject property because of presence of minerals, that is, the comparable sales figure dealt with similar
lands excepting for presence of minerals, and thus, concluded that addition of value of minerals was
required to determine market value of subject land.
3. Eminent Domain.
Evidence of proposed plans of city involving city's own flood control program was not admissible in
eminent domain proceeding to rebut landowner's evidence that construction of freeway in accordance with
plans presented by State would result in severe flooding problem for remainder of landowner's property;
eminent domain statute does not permit State to offset damages to landowner's property via special benefits
which may accrue to property as result of separate plan project by third party. NRS 37.110.
104 Nev. 479, 480 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
4. Eminent Domain.
Option to purchase land is valuable right compensable in condemnation action where exercise of option
is foregone conclusion.
5. Eminent Domain.
Option to purchase was valuable right compensable in condemnation action, where optionee was granted
ninety-nine year option to purchase land and over years since option was granted value of land subject to
option had appreciated to amount substantially greater than option price, making exercise of option
foregone conclusion.
6. Eminent Domain.
Landowner was entitled to interest on condemnation judgment prior to date of occupancy by State,
despite State's contention that because primary value of condemned land was mineral reserves, service of
summons did not destroy development of condemned land until State actually occupied lands, where had
landowner attempted to mine subject land, State would have sought immediate occupancy to prevent $3.00
per cubic yard replacement cost of minerals.
OPINION
Per Curiam:
The Facts
On January 15, 1986, appellant Nevada Department of Transportation filed a
condemnation action against respondent Las Vegas Building Materials, Inc. (LVBM) to
acquire property necessary to the construction of Interstate 95. The subject of the eminent
domain action was 41.65 acres of land and an easement affecting 3.21 acres for the relocation
of utilities. The condemned property was part of a larger parcel owned by LVBM, a
corporation engaged in common mining operations and a sand and gravel processing and
sales business.
The parties stipulated that the larger parcel potentially affected by the condemnation
consisted of 336.93 acres, and that January 16, 1986, was the date of valuation. Prior to trial,
the State filed a motion in limine seeking to limit LVBM's presentation of valuation evidence.
Specifically, the motion focused on the issue of the highest and best use of the subject
property and the impropriety of adding to the market value of the land the value of the
mineral reserves (i.e., gravel). However, counsel for LVBM informed the court that LVBM
was considering the gravel as one of many factors in valuing the property and that its experts
would restrict their testimony to the effect that the presence of the gravel has on market
value. Accordingly, the court denied the State's motion.
During its case in chief, LVBM introduced engineering and appraisal testimony critical of
the drainage aspects of the proposed highway project.
104 Nev. 479, 481 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
posed highway project. The engineer, Charles Brechler, testified that the placement of the flat
bottom ditch and drainage structure was inconsistent with good engineering practice.
Specifically, Brechler testified that the proposed drainage structure would (1) silt up and
cause an eight to ten acre ponding of water on LVBM's land west of the freeway land, (2)
result in ponding of water to a depth of 2 1/2 feet at all times in the concrete box of the
drainage structure, and (3) cause three to four acres of ponding on LVBM's property on the
east side of the freeway.
The State sought to rebut Brechler's flood damage testimony by introducing evidence
concerning the City of Henderson's proposed comprehensive flood control plan. However,
ruling that the evidence was a speculative source of special benefits, the trial court granted
LVBM's motion in limine, thereby precluding the State from bringing in anything regarding
the flood control by the City of Henderson. . . .
The larger parcel was originally criss-crossed by strips of land, owned in fee by the City of
Henderson, which were encumbered by utility easements and the federal government's
underground water easement within the Pitman lateral. LVBM submitted evidence that on
October 5, 1966, it obtained a ninety-nine year option from the City of Henderson to purchase
the land under these easements at a price of $400 per acre (purchases to be at minimum one
acre increments and to remain subject to the utility easements). The State introduced evidence
that the City of Henderson, by resolution dated July 1, 1986, transferred to the State the land
which was the subject of LVBM's option to purchase.
The trial concluded with a jury verdict and subsequent judgment in the amount of
$2,574,000.
1
The judgment provided that interest on the judgment would apply from January
16, 1986, to March 25, 1986, and thereafter until paid. Subsequent State motions to alter or
amend the judgment upon the verdict, and for a new trial, were denied. In appealing the
judgment, the State claims the trial court erred in (1) allowing LVBM to make a double
valuation of the land by separately valuing the minerals and adding that value to the market
value of the land, (2) preventing the State from presenting evidence of the City of
Henderson's proposed flood control plan, (3) allowing LVBM to be compensated for an
unexercised option to purchase land, and (4) granting LVBM interest on the judgment prior to
the date of occupancy.
____________________

1
The fair market value of the property was found to be $1,436,000. Severance damages to the remainder of
LVBM's property was held to be $1,000,000. The damage caused by the loss of LVBM's option to purchase was
held to be $138,000.
104 Nev. 479, 482 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
Discussion
Evidence Concerning Valuation of the Land
[Headnote 1]
The parties do not dispute the law applicable to this issue. In a condemnation action the
existence of mineral deposits in or on land is an element to be considered in determining the
land's value. Nevertheless, where the property is not taken for the purpose of obtaining the
minerals or as an ongoing business it is improper to appraise the mineral deposits separately
and add the mineral value to the value of the land. See, e.g., United States v. 91.90 Acres of
Land, 586 F.2d 79, 87 (8th Cir. 1978); 4 J. Sackman, Nichols' The Law of Eminent Domain
13.22, at 13-126, 127 (1985). That is, separate valuation of the minerals apart from the land
results in a double valuation and involves speculation.
[Headnote 2]
In the instant case, the State contends that LVBM made a double valuation of the land by
separately valuing the minerals and then adding that value to the market value of the land.
LVBM claims both its appraisers testified as to the market value of the propertygiving
consideration to the presence of the aggregatesand thus did not include a double valuation
as the State suggests. Our review of the record leads us to conclude that LVBM is correct.
One of LVBM's appraisers testified that the fair market value of the subject parcels, as
determined by the comparable sales approach, ranged between $25,000 to $30,000 per acre;
using a similar approach, the other appraiser set the value at $20,000 to $30,000 per acre.
However, both appraisers testified that, because of the mineral deposits, they valued the
property in excess of the value determined by the comparable sales approach. As a result, the
State argues that the minerals were separately valued from the land, resulting in an improper
double valuation. Although the argument has appeal on its face, it is flawed.
The State in effect suggests that both appraisers first determined the market value of the
property and then added the value of the gravel. However, the appraisers took the position
that there were no comparable sales to the subject property because of the presence of the
minerals. That is, the comparable sales figures dealt with similar lands excepting the
presence of minerals. Thus, both appraisers added what they concluded was the value of the
minerals in order to determine the market value of the subject land.
2
Contrary to the State's
claim, this is not a double valuation.
____________________

2
Thus, for example, as noted in 4 J. Sackman, Nichols' The Law of Eminent Domain 13.22, at 126-30
(1985):
104 Nev. 479, 483 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
Evidence of Henderson's Proposed Flood Control Plan
[Headnote 3]
LVBM's engineer testified that construction of the freeway in accordance with the plans
presented by the State would result in a severe flooding problem for the remainder of
LVBM's property. In response, the State sought to put into evidence proposed plans of the
City of Henderson involving the City's own flood control program in the area. The State
argues that the trial court erred in denying the presentation of this evidence. We disagree.
NRS 37.110 in pertinent part provides:
The . . . jury . . . must ascertain and assess
. . . .
2. If the property sought to be condemned constitutes only a part of a large parcel,
the damages which will accrue to the portion not sought to be condemned, by reason of
its severance from the portion sought to be condemned, and the construction of the
improvement in the manner proposed by the plaintiff.
. . . .
4. Separately, how much the portion not sought to be condemned, and each estate or
interest therein, will be benefited, if at all, by the construction of the improvement
proposed by the plaintiff; and if the benefit shall be equal to the damages assessed,
under subsection 2 of this section, the owner of the parcel shall be allowed no
compensation except the value of the portion taken; but if the benefit shall be less than
the damages so assessed, the former shall be deducted from the latter, and the
remainder shall be the only damages allowed in addition to the value of portion taken
(emphasis added).
The statutory scheme provides that the condemnor must pay for damages to the remaining
land caused by the condemnor's improvement; the condemnor may also offset any special
benefits which are caused by the condemnor's improvements. However, the statute does not
permit the State to offset damages via special benefits which may accrue to the property
as a result of a separate planned project by a third party.
____________________
In determining just compensation to be paid to the owner, it is not permissible to aggregate the value of the
land and value of the deposit. . . . However, while the profits, price or value of the minerals, taken separately,
may not be considered, yet the value, extent and quality of such minerals as exist upon the land may be
considered. If the extent and quality and value of the stone as it lies on the land may not be considered, there
would be no way by which the value of the land with the minerals could be shown. All legitimate evidence
tending to establish value of the land with the minerals in it is permissible. . . . [C]onsideration may be given to
the quantity of the mineral that can be extracted and to the value thereof, purely as evidence for arriving at the
value of the land. (Emphasis added.)
104 Nev. 479, 484 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
the statute does not permit the State to offset damages via special benefits which may accrue
to the property as a result of a separate planned project by a third party.
In construing a similar provision to NRS 37.110, the court in People ex rel. Dept. of Public
Works v. Simon Newman Co., 37 Cal.App.3rd 398 (1974), noted:
Code of Civil Procedure section 1248 authorizes severance damages (subd. 2) and
benefits (subd. 3) to be assessed for the construction of the improvement in the
manner proposed by the condemnor. That section does not authorize the offsetting of
damages and benefits between distinct and separate projects of improvement simply
because the condemning agency has, for its own convenience, joined such separate
projects in one action.
Id. at 408. This result seems especially appropriate in the present case involving Henderson's
proposed plans. For example, part of Henderson's flood control plan is contingent upon
acquiring a right-of-way on LVBM's land to construct a drainage canal; the canal would link
existing water courses and allegedly resolve the flooding problem. However, the practical
dilemma presented to LVBM is that it would have no remedy against the State in the event
Henderson failed to complete its project
3
or in the event the project failed to cure the
flooding problem. Because the proposed flood control plan was a speculative source of
benefits from a third party, the trial court was correct in refusing to allow evidence of the
plan.
Unexercised Option to Purchase Land
This court has not heretofore addressed whether an unexercised option to purchase land is
a compensable interest in a condemnation proceeding. A review of jurisdictions which have
addressed the issue reveals that there are at least two different approaches in resolving the
issue: (1) applying a public policy approach or (2) applying a contract v. property interest
analysis.
The public policy approach focuses on the paramount purpose of eminent domain lawto
do substantial justiceand thus concerns itself with fairness and public policy. The leading
case taking this approach is County of San Diego v. Miller, 119 Cal.Rptr. 491, 532 P.2d 139
(1975), wherein the California Supreme Court rejected prior California case law holding that
an option to purchase land is not a compensable interest in a condemnation action.
____________________

3
Indeed, at the time of oral argument before this court (June 6, 1988), respondent's counsel noted that
Henderson had yet to act on its proposed flood control program.
104 Nev. 479, 485 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
option to purchase land is not a compensable interest in a condemnation action. Quoting
United States v. 53 1/4 Acres of Land, 139 F.2d 244, 247 (2d Cir. 1943), the Miller court
emphasized that the right to compensation is to be determined by whether the condemnation
has deprived the claimant of a valuable right rather than by whether his right can technically
be called an estate' or interest' in the land. 532 P.2d at 143.
4

Under the second approach, whether an unexercised option to purchase land is a
compensable interest in a condemnation proceeding turns upon the characterization of the
optionee's interest as a property or a contract interest. The majority of courts utilizing this
approach have concluded that an option to purchase land is merely a contract right and not a
property interest compensable in a condemnation action.
5
In the instant case, the State
correctly notes that, in determining whether a particular right is to be compensable in a
condemnation action, we have consistently used a property right analysis.
6
For example, in
Sloat v. Turner, 93 Nev. 263, 563 P.2d 86 (1977), we held that NRS 37.110(3)
7
was
enacted to apply only when actual physical damage has been inflicted on the property by
construction of the improvement or if some property right which is directly connected to
the ownership or use of the property is substantially impaired or extinguished."
____________________

4
The Miller court determined that the right to purchase created by an option is a substantial one, noting that
(1) the right is irrevocable by the optionor, (2) the right may be exercised against the optionor's successors
following his death, (3) when recorded, the right (under California law) creates a cloud on the optionor's title for
one year following expiration, (4) unless the agreement provides to the contrary, the right is generally
assignable, and (5) for tax purposes, the assignment of the right is treated as a sale of the land by the optionee.
532 P.2d at 141.

5
See, e.g., Orleans Parish School Bd. v. Lupo, 470 So.2d 202 (La.App. 1985); State v. New Jersey Zinc Co.,
193 A.2d 244 (N.J. 1963); Carroll v. Louisville, 354 S.W.2d 291 (Ky. 1962); Phillips Petroleum Co. v. Omaha,
106 N.W.2d 727 (Neb. 1960); Cravero v. Florida State Turnpike Authority, 91 So.2d 312 (Fla. 1956).
A substantial exception to the general rule has been applied to those cases in which a lease is involved
providing that the lessee may at anytime during the lease exercise an option to purchase the land. See, e.g.,
Nicholson v. Weaver, 194 F.2d 804 (9th Cir. 1952). In such a situation the lessee is already involved in using the
land and, often, there is strong reason to suppose that the option would be exercised when the time ripens.

6
See, e.g., Meridith v. Washoe Co. School Dist., 84 Nev. 15, 435 P.2d 750 (1968) (a restrictive covenant is
deemed to be property in a constitutional sense, for which just compensation must be paid); State v. Wells
Cargo, Inc., 82 Nev. 82, 411 P.2d 120 (1966) (an express easement is an interest in land and therefore
compensable in an eminent domain action).

7
NRS 37.110(3) provides:
The court, jury . . . must ascertain and assess:
. . . .
(3) If the property, though no part thereof is taken, will be damaged by the construction of the
proposed improvement, the amount of such damages.
104 Nev. 479, 486 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
damage has been inflicted on the property by construction of the improvement or if some
property right which is directly connected to the ownership or use of the property is
substantially impaired or extinguished. 93 Nev. at 269, 563 P.2d at 89 (emphasis added).
Furthermore, we have previously determined that an option to purchase property is a
contract. . . . Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 111, 424 P.2d 101, 104 (1967).
[Headnote 4]
However, despite our determination in Mohr, we agree with the California court in Miller
that the right to purchase created by an option may be a substantial and valuable right.
8
Accordingly, in consideration of fairness and public policy, although we decline to rule that
any option to purchase land is of value compensable in a condemnation action, where the
exercise of the option is a foregone conclusion we hold that the option is a valuable right
compensable in such an action.
[Headnote 5]
In the present case, LVBM was granted a ninety-nine year option to purchase land now
condemned for use in the construction of the interstate. No doubt, over the years since the
option was granted in 1966, the value of the land subject to the option has appreciated to an
amount substantially greater than the option price of $400.00 per acre. It defies common
sense to contend that LVBM would disregard the obvious economic benefit it enjoys as a
result of the option. Accordingly, because we view LVBM's exercise of the option as a
foregone conclusion, the option to purchase is a valuable right compensable in the instant
condemnation action.
Interest on the Judgment
[Headnote 6]
The State contends that the trial court erred in allowing LVBM interest on the judgment
prior to the date of occupancy. Again, we disagree.
In Manke v. Airport Authority, 101 Nev. 755, 710 P.2d 80 (1985), we noted, where
condemned property is vacant, unimproved, and of value to the condemnee primarily for
purposes of investment or development . . . a taking occurs on the date of summons. 101
Nev. at 758, 710 P.2d at 82. Accordingly, in such a case the landowners are entitled to
interest from that date. Id.
The State makes the novel argument that, because a primary value of the condemned land
is mineral reserves, the service of summons in the instant case, unlike Manke, did not
operate to "destroy" development of the condemned property until the State actually
occupied the land.
____________________

8
See supra note 4.
104 Nev. 479, 487 (1988) State, Dep't of Transp. v. Las Vegas Bldg.
summons in the instant case, unlike Manke, did not operate to destroy development of the
condemned property until the State actually occupied the land. The State thus suggests that
nothing prevented LVBM from mining the condemned land until the State occupied the land.
This argument is unsupportable. State Engineer Eugene Weight testified that the State would
not mine the gravel on the right-of-way because they needed it in place and borrow costs the
State $3.00 a cubic yard in place. Weight's testimony supports LVBM's argument that, had
LVBM attempted to mine the subject land, the Statein order to prevent a $3.00 per cubic
yard replacement costcertainly would have sought immediate occupancy. In effect, once
the condemnation action was filed, the subject property had no further use to LVBM. Thus,
pursuant to Manke, LVBM was entitled to interest on the judgment prior to the date of
occupancy.
Having reviewed the issues raised by the State and perceiving no error on the part of the
trial court, we hereby affirm the judgment.
____________
104 Nev. 487, 487 (1988) Maecon, Inc. v. State, Dep't of Taxation
MAECON, INC., a Nevada Corporation, Appellant, v. THE STATE OF NEVADA
DEPARTMENT OF TAXATION, Respondent.
No. 18427
September 21, 1988 761 P.2d 411
Appeal from judgment affirming a use tax assessment by the Nevada Department of
Taxation. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
General engineering contractor sought redetermination of deficiency determinations by
Department of Taxation. The Department found that material purchased by contractor for use
in government construction projects was subject to use tax. The district court affirmed, and
contractor appealed. The Supreme Court held that transactions under which contractor
purchased materials for use in performance of contracts with various government entities
were not exempt from state sales tax as sale to Government, despite contract provisions
indicating that property intended for projects vested with Navy upon delivery to project site.
Affirmed.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks and Timothy E. Rowe,
Reno, for Appellant.
104 Nev. 487, 488 (1988) Maecon, Inc. v. State, Dep't of Taxation
Brian McKay, Attorney General, Michael J. Dougherty, Deputy Attorney General, Carson
City, for Respondent.
1. Taxation.
Transactions under which general engineering contractor purchased materials for use in performance of
contracts with various government entities were not exempt from state sales tax as sale to Government,
despite contract provisions indicating that property intended for projects vested with Navy upon delivery to
project site. NRS 372.325.
2. Taxation.
Statute imposing excise tax on storage, use or other consumption in state of tangible personal property
purchased from retailer authorized Tax Commission to issue Ruling No. 67 indicating that construction
contractor is consumer of personal property purchased for use in improving real property pursuant to
construction contract and that tax applies to total sales price of property to contractor. NRS 372.185,
372.340.
3. Taxation.
General engineering contractor held all incidents of ownership in materials used in Navy construction
products until materials were delivered to project site, and thus, incidents of ownership were sufficient to
subject contractor to use tax, where Navy had no rights in materials whatsoever until they were delivered to
project site. NRS 372.325.
OPINION
Per Curiam:
Facts
Appellant Maecon, Inc. is a general engineering contractor licensed in the State of Nevada.
Maecon has a particular expertise in the design, fabrication and installation of special
industrial machinery. During 1978, Maecon entered into five contracts involved in the present
tax assessment dispute. Three of these contracts were with the United States Government,
Department of the Navy; another contract was with the Army Corps of Engineers, and the
remaining contract was with the Clark County Sanitation District. Each of the three Navy
contracts contained a title clause which provided that title to all property intended for
incorporation in the project vested with the Navy upon delivery of the property to the project
site.
Maecon did not pay sales or use tax on the materials purchased for use in performance of
these five contracts. Subsequent to Maecon's completion of these contracts, the Nevada
Department of Taxation audited Maecon for the period of July 1, 1978 through September 30,
1979 and rendered two deficiency determinations. Pursuant to Maecon's petition for
redetermination, the Department of Taxation conducted a hearing which resulted in a finding
that Maecon, under Nevada Tax Commission Ruling No.
104 Nev. 487, 489 (1988) Maecon, Inc. v. State, Dep't of Taxation
67,
1
was subject to a use tax for all tangible personal property purchased for installation
under Maecon's government contracts.
The Nevada Tax Commission affirmed the decision. Affirming the findings of the Tax
Commission, the district court denied Maecon's petition for judicial review. As to the Navy
contracts, the district court found that, despite the title clauses, Maecon had exercised
sufficient incidents of ownership over the property transferred to the Navy to incur use tax
liability on Maecon.
On appeal, Maecon contends that (1) the transactions taxed by the department were in fact
sales to government entities exempted from taxation under NRS 372.325; (2) the Tax
Commission lacked specific statutory authority to enact Ruling No. 67; and (3) Ruling No. 67
does not apply in the instant case because Maecon lacked sufficient incidents of ownership
over the property transferred to the Navy.
Discussion
[Headnote 1]
We are unpersuaded by Maecon that the taxed transactions were sales to the federal
government exempt from taxation under NRS 372.325.
2
Maecon concedes that it purchased
the materials for use in performance of its contracts with the various government entities.
____________________

1
Ruling 67 in pertinent part provides:
3. Tax Liability of Construction Contractor While Performing Under Contract.
A construction contractor is the consumer of all tangible personal property purchased for use in
improving real property pursuant to a construction contract for improvement to realty, and tax shall apply
to the total sales price of such property to the contractor. If any such purchase is made ex-tax (because
bought from a vendor not having a valid Nevada seller's permit, or because a resale certificate was
properly given, or for any other reason) the use tax applies based upon the sales price of the property to
the contractor. The presumption shall be that any tangible personal property purchased by a construction
contractor for use in the performance of a construction contract for improvement to realty has been
purchased for use in improving real property.

2
NRS 372.325 in pertinent part provides:
There are exempted from the computation of the amount of sales tax on the gross receipts from the
sale of any tangible personal property to:
1. The United States, its unincorporated agencies and instrumentalities.
2. Any incorporated agency or instrumentality of the United States wholly owned by the United States
or by a corporation wholly owned by the United States.
3. The State of Nevada, its unincorporated agencies and instrumentalities.
4. Any county, city, district or other political subdivision of this state.
104 Nev. 487, 490 (1988) Maecon, Inc. v. State, Dep't of Taxation
government entities. However, because the Navy contracts provided that title to all property
intended for the projects vested with the Navy upon delivery of the property to the project
site, Maecon argues that the transactions taxed were in fact direct sales to the government.
We disagree.
In the instant case, Maecon purchased the materials with the intent that they be used in
performance of its construction contracts and not as a sale to the government independent
of those contracts. The transfer of title to the materials to the Navy, upon delivery of the
materials to the project sites, did not convert these transactions into direct sales to the
government. See Boeing Co. v. Ohmdahl, 169 N.W.2d 696 (N.D. 1969) (government
contractor's purchases were not exempt from sales taxes as sales for resale, although contracts
provided that title should vest in the United States immediately, where purchases were for
futherance of contract and personalty was incorporated into realty at work site).
In United States v. New Mexico, 455 U.S. 720 (1982), the Supreme Court held that
imposition of state use tax upon property purchased by federal contractors did not infringe on
federal immunity from state taxationeven though title to the property vested in the
government upon shipment by the vendor and the contractors procured the materials and paid
for them with government funds under an advance funding arrangement. The Court
concluded that tax immunity is appropriate in only one circumstance: when the levy falls on
the United States itself, or on an agency or instrumentality so closely connected to the
Government that the two cannot realistically be viewed as separate entities, at least insofar as
the activity being taxed is concerned. Id. at 735. Whereas the sales in the present case were
not to the government, and the tax on the sales did not fall on the government itself, the sales
were not tax exempt under NRS 372.325.
[Headnote 2]
Maecon also argues that, at the time the Tax Commission issued Ruling No. 67, the
Commission lacked specific statutory authority to do so. Specifically, Maecon notes that NRS
272.340,
3
which clearly authorizes Ruling No. 67, was unconstitutional during the audit
period in question because it applied the sales and use tax in a discriminatory manner.4
However, Maecon fails to recognize that statutory authority for Ruling No.
____________________

3
NRS 372.340 provides:
The taxes imposed under this chapter [sales and use taxes] apply to the sale of tangible personal
property to and the storage, use or other consumption in this state of tangible personal property by a
contractor for a governmental, religious or charitable entity which is otherwise exempted from tax unless
the contractor is a constituent part of that entity.
104 Nev. 487, 491 (1988) Maecon, Inc. v. State, Dep't of Taxation
sales and use tax in a discriminatory manner.
4
However, Maecon fails to recognize that
statutory authority for Ruling No. 67 is also found in NRS 372.185 which in pertinent part
provides: An excise tax is hereby imposed on the storage, use or other consumption in this
state of tangible personal property purchased from any retailer. . . . (Emphasis added.)
Ruling No. 67 classifies all construction contractors as consumers of all tangible personal
property purchased for use in the performance of a construction contract for improvement to
realty.
5

Finally, Maecon contends that even if Ruling No. 67 is valid, it does not apply in the
instant case because Maecon lacked sufficient incidents of ownership in the property. In
support of its claim, Maecon relies on our decision in Nevada Tax Comm'n v. Harker, 101
Nev. 229, 699 P.2d 112 (1985). In Harker, we held that a contractor who acted as a conduit
through which the City of Reno procured its materials, equipment and fixtures for a
construction project did not have sufficient incidents of ownership of such property to
warrant imposition of a use tax. 101 Nev. at 231-32, 699 P.2d at 114. However, unlike
Maecon in the instant case, the contractor in Harker, never owned the items installed. Indeed,
his purchase order expressly provided that the materials paid for were the property of the City
of Reno. As we emphasized in Harker:
There was no unrestricted right to dispose of the property; nor was there any exclusive
right [in the contractor] to it or into use, or to exclude the right in it or to it by the
contracting governmental entity. . . . In essence, the governmental entity was in fact the
user, storer or consumer of the materials and equipment while the contractor acted
simply as a conduit through which the government procured its materials, equipment and
fixtures.
101 Nev. at 231, 699 P.2d at 114.
____________________

4
Before NRS 372.340 was amended January 1, 1987, the statute imposed a tax on contractors dealing with
the federal government where no such tax was imposed on contractors dealing with state and municipal entities.
An attempt to tax contractors with the federal government while exempting contractors dealing with state and
local governments is unconstitutional. See United States v. State of Wash., 654 F.2d 570 (1981).

5
In State ex rel. Tax Comm'n v. Saveway, 99 Nev. 626, 630, 668 P.2d 291, 294 (1983), we remarked:
Great deference will be afforded to an administrative body's interpretation when it is within the statutory
language; moreover, the Legislature's acquiescence in an agency's reasonable interpretation indicates that
the interpretation is consistent with legislative intent. [Citations omitted.]
We note that Ruling No. 67, as codified at NAC 372.190-.210, has been in effect since 1972 and the Legislature
has not seen fit to disturb it.
104 Nev. 487, 492 (1988) Maecon, Inc. v. State, Dep't of Taxation
[Headnote 3]
In the case at bar, the title to the materials did not vest in the Navy until the materials were
delivered to the project site. Until delivery at the site, Maecon held all incidents of ownership
in the materials. The Navy, unlike the City of Reno in Harker, had no rights in the materials
whatsoever until they were delivered to the project site. Indeed, after it purchased the
materials, Maecon had the absolute right to divert the materials to another unrelated project or
to use them otherwise as it pleased. Under those facts we conclude that the Harker ruling
does not apply and that Maecon's incidents of ownership were sufficient to subject it to
taxation under Ruling No. 67.
6

Accordingly, we hereby affirm the judgment of the district court.
____________________

6
An analogous result is found in Boeing Co. v. Ohmdahl, 169 N.W.2d 696 (N.D. 1969). In Boeing, the North
Dakota Supreme Court reversed a lower court ruling that Boeing, which had a construction contract with the
federal government, was exempt from use taxes on purchases it made for the performance of its contract. The
contract provided that title to Boeing's purchases (for performance of the contract) would vest in the United
States. Similar to our reasoning in Harker, the Boeing court noted that if the government had complete,
uninhibited title and almost exclusive control of the action of the contractor, the State could not tax the
purchases. Id. at 703. However, in reversing the lower court, the Boeing court expressly emphasized that Boeing,
not the government, was liable for the purchase price, and because Boeing's credit guaranteed payment for the
goods, Boeing had considerable discretion over the goods. Id. at 707.
____________
104 Nev. 492, 492 (1988) Munley v. District Court
EMMETT MUNLEY, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, THE HONORABLE
ROBIN A. WRIGHT, Respondents, and TRIMONT LAND COMPANY, a California
Corporation, dba NORTHSTAR AT TAHOE, Real Party in Interest.
No. 18809
September 21, 1988 761 P.2d 414
Original petition for a writ of mandamus challenging an order of the district court
quashing service of process upon real party in interest Trimont Land Company. Second
Judicial District Court, Washoe County; Robin A. Wright, Judge.
Skier who was injured in fall from chair lift at California ski resort brought personal injury
suit against resort operator. The district court granted motion to quash service of process,
and skier petitioned for writ of mandamus.
104 Nev. 492, 493 (1988) Munley v. District Court
district court granted motion to quash service of process, and skier petitioned for writ of
mandamus. The Supreme Court held that, assuming that operator's promotional activities in
Nevada were transacting business in Nevada within meaning of long arm statute, skier
injured while riding chair lift at resort failed to demonstrate that cause of action against
operator arose from promotional activities in Nevada, and thus, operator's acts in Nevada
were insufficient to confer personal jurisdiction on district court pursuant to long arm statute.
Petition denied.
Erickson, Thorpe, Swainston, Cobb & Lundemo, Ltd., Reno, for Petitioner.
Margo Piscevich, Reno, for Respondents and Real Party in Interest.
1. Courts.
Assuming that California ski resort operator's promotional activities in Nevada were transacting
business in Nevada within meaning of long arm statute, skier injured while riding chair lift at resort in
California failed to demonstrate that cause of action against operator arose from promotional activities in
Nevada, and thus, operator's acts in Nevada were insufficient to confer personal jurisdiction on district
court pursuant to long arm statute; skier did not suggest that promotional activities in Nevada were related
to alleged negligence in maintaining and operating California chair lift, although skier's trip to California
was in response to promotional activities. NRS 14.065, 14.065, subd. 2(a).
2. Courts.
Provision of long arm statute authorizing assertion of personal jurisdiction over one committing tortious
act in Nevada did not confer personal jurisdiction over operator of California ski resort for injuries
suffered by skier while on chair lift, based on claim that chair lift had been negligently managed,
maintained, and operated by operator's employees. NRS 14.065, subd. 2(a)(b).
3. Courts.
Promotional activities in Nevada by operator of California ski resort did not evince a pattern of
substantial and continuous activities within Nevada sufficient to give rise to presence in Nevada and to
confer on Nevada district court general jurisdiction over personal injury action brought by skier against
operator for injuries suffered while riding chair lift at resort.
OPINION
Per Curiam:
On May 12, 1987, petitioner Emmett Munley, a Nevada resident, filed a complaint in the
Second Judicial District Court against Trimont Land Company, dba Northstar at Tahoe
{Northstar), a California ski resort.
104 Nev. 492, 494 (1988) Munley v. District Court
against Trimont Land Company, dba Northstar at Tahoe (Northstar), a California ski resort.
The complaint alleged that petitioner was injured on January 14, 1987, while riding a chair
lift at Northstar which had been negligently managed, maintained, and operated by Northstar's
employees. Northstar appeared specially and moved the district court to quash service of
process, contending that the district court lacked in personam jurisdiction. Petitioner opposed
the motion. The evidence presented to the district court shows that Northstar's contacts with
Nevada consisted solely of advertising and promotional activities. These activities included
continuous membership in the Reno/Sparks Chamber of Commerce since 1984, the
maintenance of a contract with a Reno outdoor advertising company, the placement of one
advertisement in the Las Vegas Review Journal, the placement of an advertisement in the
Reno telephone directory, and the distribution of brochures to several ski shops and sporting
goods stores in the Reno area. The district court concluded that it lacked personal jurisdiction
over Northstar and, accordingly, granted Northstar's motion to quash service of process.
[Headnote 1]
Petitioner contends that, based upon Northstar's business activities in Nevada, the district
court should have asserted personal jurisdiction over Northstar pursuant to NRS 14.065(2)(a),
Nevada's long arm statute.
1
We disagree. NRS 14.065(2)(a) authorizes a district court to
assert personal jurisdiction over a nonresident defendant who has transacted business in
Nevada, if the cause of action arises from those business activities. See Shapiro v.
Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982). Assuming, arguendo, that Northstar's
promotional activities in Nevada constituted transacting business, petitioner has failed to
demonstrate that his cause of action arose from these activities. In particular, we note that
petitioner alleged in his complaint that his injuries were proximately caused by the negligent
management, maintenance and operation of Northstar's ski chair lifts in California.
____________________

1
NRS 14.065 provides in pertinent part:
2. Any person who, in person or through an agent or instrumentality, does any of the acts enumerated
in this subsection thereby submits himself and, if a natural person, his personal representative to the
jurisdiction of the court of this state as to any cause of action which arises from:
(a) Transacting any business or negotiating any commercial paper within this state;
. . . .
3. Only causes of action arising from these enumerated acts may be asserted against a defendant in an
action in which jurisdiction over him is based on this section.
104 Nev. 492, 495 (1988) Munley v. District Court
California. Even if we accept this allegation as true, petitioner's cause of action did not arise
out of Northstar's activities in Nevada. Indeed, there is nothing in the record suggesting that
Northstar's promotional activities in Nevada were related to its alleged negligence in
maintaining and operating its California chair lifts. See, e.g., Berks v. Rib Mountain Ski
Corp., 571 F.Supp. 500 (N.D.Ill. 1983); Wisselman v. Mount Snow, Ltd., 524 F.Supp. 78
(E.D.N.Y. 1981). When a cause of action does not arise out of a nonresident defendant's acts
in the forum, the assertion of jurisdiction would be unreasonable. See Shapiro, supra.
Moreover, Northstar's promotional activities do not confer jurisdiction upon the district court
even though petitioner's trip to Northstar was in response to such promotional activities. See
Circus Circus Hotels, Inc. v. Superior Court, 174 Cal.Rptr. 885, 900 (Cal.Ct.App. 1981)
(nonresident defendant hotel's promotional activities in California do not, without more,
operate to confer personal jurisdiction over defendant, where plaintiff sues in California for
defendant's alleged negligence occurring in the course of recreational activities at defendant's
hotel, even though plaintiff's sojourn outside the forum was in response to such promotional
activities). Accordingly, under the facts of this case, we conclude that Northstar's acts in
Nevada were insufficient to confer personal jurisdiction upon the district court pursuant to
NRS 14.065(2)(a).
2

[Headnote 2]
We are not persuaded by petitioner's assertion that pursuant to Burger King Corp. v.
Rudzewicz, 471 U.S 462 (1985), his cause of action need only relate to Northstar's acts in
Nevada. Rudzewicz, a Michigan franchisee, had entered into a franchise contract with Burger
King, a Florida corporation. Burger King subsequently commenced an action against
Rudzewicz in Florida for breach of contract. In holding that Florida's long-arm statute
conferred jurisdiction upon Florida's courts, the Supreme Court concluded that Rudzewicz
had deliberately reached out beyond his home state and established a substantial 20-year
contractual relationship with Burger King's headquarters in Florida. Reasoning that this
relationship can in no sense be viewed as random,'
____________________

2
To the extent petitioner contends that the district court may assert personal jurisdiction pursuant to NRS
14.065(2)(b), based upon Northstar's alleged commission of a tortious act, we conclude that NRS 14.065(2)(b)
does not operate to confer jurisdiction over Northstar. See Calder v. Jones, 465 U.S. 783 'fortuitous,' or
'(1984) (a nonresident defendant who engages in intentional, and allegedly tortious, actions expressly aimed at
the forum should reasonably anticipate being haled into court there; if, however, the defendant has committed
mere untargeted negligence, he cannot reasonably anticipate having to defend a lawsuit in another
jurisdiction).
104 Nev. 492, 496 (1988) Munley v. District Court
fortuitous,' or attenuated,' the court concluded that this franchise dispute [the cause of
action] grew directly out of a contract which had a substantial connection with [Florida].'
Burger King, 471 U.S. at 479, 480 (emphasis added). The Burger King opinion thus suggests
that the cause of action must have a specific and direct relationship or be intimately related to
the forum contacts. In the present case, however, Northstar's contacts with Nevada were
neither significant nor substantial and were therefore insufficient to support the assertion of
jurisdiction on a cause of action not directly related to those contacts.
[Headnote 3]
Finally, the requirements for general jurisdiction similarly have not been satisfied in the
present case. None of Northstar's promotional activities evince a pattern of substantial and
continuous activities within this state sufficient to give rise to a presence in Nevada and to
confer general jurisdiction on the district court. See Laxalt v. McClatchy, 622 F.Supp. 737,
742 (D.Nev. 1985). The district court therefore properly concluded that it lacked either
specific jurisdiction, under the long arm statute, or general jurisdiction, over Northstar.
Accordingly, for the reasons expressed above, we deny this petition.
____________
104 Nev. 496, 496 (1988) Sheriff v. Gleave
SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant,
v. CHRISTINE ELIZABETH GLEAVE, Respondent.
No. 18469
September 21, 1988 761 P.2d 416
Appeal from order granting pretrial petition for writ of habeas corpus. Sixth Judicial
District Court, Humboldt County; Llewellyn A. Young, Judge.
Defendant was arrested and charged with one count of unlawful sale of a controlled
substance (methamphetamine). The district court granted defendant's pretrial petition for writ
of habeas corpus, and state appealed. The Supreme Court held that: (1) the issue of
entrapment may be asserted and reviewed in a habeas corpus proceeding based solely on the
transcript of defendant's preliminary hearing; (2) defendant's failure to assert her entrapment
defense at the preliminary hearing did not preclude her from presenting that defense to the
district court in the pretrial habeas corpus proceeding; and (3) the district court erred in
determining as matter of law that defendant was entrapped.
Reversed and remanded.
104 Nev. 496, 497 (1988) Sheriff v. Gleave
Brian McKay, Attorney General, Carson City; Jack T. Bullock, District Attorney, and
Edward T. Reed, Deputy District Attorney, Humboldt County, for Appellant.
John M. Doyle, Winnemucca, for Respondent.
1. Habeas Corpus.
Issue of entrapment is one of law which may be asserted and reviewed in habeas corpus proceeding based
solely on review of transcript of preliminary hearing, in those instances where clear uncontroverted
evidence exists in record which establishes defense.
2. Habeas Corpus.
Defendant's failure to assert her entrapment defense at preliminary hearing did not preclude her from
presenting that defense to district court in pretrial habeas corpus proceeding. NRS 34.360.
3. Criminal Law.
Evidence at preliminary hearing of defendant's predisposition to commit crime of unlawful sale of
controlled substance did not establish entrapment as a matter of law, in light of testimony that undercover
officer, acting on informant's tip, met defendant in bar, mentioned once to defendant that he was interested
in obtaining some methamphetamine, and defendant did in fact obtain methamphetamine for officer. NRS
453.321.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondent's pretrial petition
for a writ of habeas corpus.
On March 13, 1987, an information was filed in the district court charging respondent with
one count of unlawful sale of a controlled substance, a violation of NRS 453.321. Alleging
that the evidence adduced at her preliminary hearing demonstrated that she was entrapped as
a matter of law, respondent filed in the district court a pretrial petition for a writ of habeas
corpus. On August 17, 1987, the district court concluded, as a matter of law, that respondent
was entrapped and granted respondent's pretrial habeas petition. This appeal followed.
[Headnote 1]
Appellant first asserts that a preliminary hearing is a probable cause determination, and
that appellant cannot be expected to anticipate clairvoyantly any defense that might be
raised by a defendant. Appellant further avers that entrapment is an affirmative defense that
must be raised and decided at trial. Thus, appellant contends that the district court erred when
it determined that respondent was entrapped based solely on its review of the transcript of the
preliminary hearing. We disagree.
104 Nev. 496, 498 (1988) Sheriff v. Gleave
In Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985), this court held that [e]ntrapment
as a matter of law exists where the uncontroverted evidence shows (1) that the state furnished
an opportunity for criminal conduct (2) to a person without the requisite criminal intent. 101
Nev. at 501, 706 P.2d at 835 (emphasis added). This court recently affirmed an order of the
district court granting a pretrial petition for a writ of habeas corpus based on the district
court's determination that the defendant had been entrapped as matter of law. See Sheriff v.
Hawkins, 104 Nev. 70, 752 P.2d 769 (1988). Thus, in those instances where clear,
uncontroverted evidence exists in the record which establishes the defense, the issue is one of
law which may be asserted and reviewed in a habeas proceeding. Id. Therefore, we reject
appellant's first broad assertion.
[Headnote 2]
Appellant next contends that [a] writ of habeas corpus petition challenging a finding of
probable cause by a magistrate is akin to an appeal from the finding of probable cause.
Because respondent did not present her claim of entrapment to the magistrate at the
preliminary hearing, appellant argues that respondent was precluded from raising her claim of
entrapment in the habeas corpus proceedings below, and that the district court erred when it
considered respondent's claim of entrapment.
This contention is without merit. Initially, we note that appellant has failed to cite any
authority for the proposition that the failure to assert a defense at a preliminary hearing
precludes consideration of that defense in a subsequent habeas corpus proceeding. This court
need not consider assignments of error that are not supported by relevant legal authority. See
Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (1978). Furthermore, a defendant is under
no obligation to present evidence at a preliminary hearing. Finally, we note that habeas corpus
is an original proceeding that is available to [e]very person unlawfully committed, detained,
confined or restrained of his liberty, under any pretense whatever . . . to inquire into the cause
of such imprisonment or restraint. NRS 34.360. Habeas corpus is an independent proceeding
and, as such, is not an appeal from the justice's court's probable cause determination. See
Sheriff v. Hatch, 100 Nev. 664, 691 P.2d 449 (1984). Thus, we conclude that respondent's
failure to assert her entrapment defense at the preliminary hearing did not preclude her from
presenting that defense to the district court in the pretrial habeas proceedings below.
[Headnote 3]
Finally, appellant argues that the district court erred in determining as a matter of law that
respondent was entrapped. Specifically, appellant argues that the evidence adduced at the
preliminary hearing fails to establish that respondent had no predisposition to sell
controlled substances.
104 Nev. 496, 499 (1988) Sheriff v. Gleave
cally, appellant argues that the evidence adduced at the preliminary hearing fails to establish
that respondent had no predisposition to sell controlled substances. We agree. The testimony
presented at respondent's preliminary hearing indicated that the arresting officer, acting on an
informant's tip, met respondent in a bar in Winnemucca and mentioned once to respondent
that he was interested in obtaining some methamphetamine. Although respondent did not
know the undercover officer, the evidence thus far adduced suggests respondent volunteered
that she could obtain a gram of methamphetamine for one hundred dollars, and that she
needed the money right away. Evidence indicates respondent left the bar after receiving the
money from the officer and returned to the bar an hour later with a plastic bag containing
methamphetamine. Respondent then asked the officer if she could have a line out of it. The
officer assertedly responded, I told her instead of a line would she accept some money. I
gave her two $5 bills, $10 for her trouble. The testimony presented at the preliminary
hearing reveals no evidence of importuning on the part of the undercover officer or an attempt
to befriend respondent in order to persuade her to obtain the drug. Cf. Shrader v. State, 101
Nev. 499, 706 P.2d 834 (1985) (entrapment as a matter of law established where confidential
informant, defendant's friend, importuned him for drugs for some time, and no evidence was
presented at trial that the defendant was otherwise predisposed to commit the charged crime).
If believed and not controverted, this evidence indicates respondent was predisposed to
commit the criminal activity charged. Consequently, under the facts of this case, we are
unable to conclude as a matter of law that respondent was entrapped. Therefore, we reverse
the order granting respondent's habeas corpus petition below, and we remand this case to the
district court for further proceedings.
1

____________________

1
The Honorable Cliff Young, Justice, voluntarily disqualified himself from consideration of this appeal.
____________
104 Nev. 500, 500 (1988) Cheatham v. State
KENNETH CHEATHAM, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18261
September 21, 1988 761 P.2d 419
Appeal from a judgment of conviction pursuant to a jury verdict of second degree murder.
Second Judicial District Court, Washoe County; Jerry C. Whitehead, Judge.
Defendant was convicted by jury of second degree murder, after three alleged accomplices
pled guilty to second degree murder, in the district court and defendant appealed. The
Supreme Court, Springer, J., held that: (1) tape recording made of conversation between
alleged accomplices regarding defendant's connection to murder was admissible under prior
consistent statement exception to hearsay rule; (2) admission of accomplice's out-of-court
statement under prior inconsistent statement exception to hearsay rule did not violate
defendant's constitutional right to confront witness, even though accomplice refused to testify
about statements and refused to acknowledge that he remembered statements, where
accomplice testified as to underlying facts of murder and was not ordered by court to testify
about prior inconsistent statements; and (3) evidence was sufficient to corroborate testimony
of accomplice.
Affirmed.
David Parraguirre, Public Defender, David A. Cass, Deputy Public Defender, Karen
Grifall, Deputy Public Defender, Washoe County, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
To be admissible under prior consistent statement exception to hearsay rule, statement must have been
made at time when declarant had no motive to fabricate. NRS 51.035, subd. 2(b).
2. Criminal Law.
Tape recording of conversation between two persons accused for same crime as defendant was
admissible under prior consistent statement exception to hearsay rule where neither party could reasonably
have believed that he or she was being overheard, and recording was of a sub rosa, barely audible
conversation between two persons accused of murder regarding whether defendant had yet been arrested.
NRS 51.035, subd. 2(a).
3. Criminal Law.
Out-of-court statement is not inadmissible as hearsay if declarant testifies at trial and is subject
to cross-examination concerning statement, and out-of-court statement is
inconsistent with declarant's testimony.
104 Nev. 500, 501 (1988) Cheatham v. State
testifies at trial and is subject to cross-examination concerning statement, and out-of-court statement is
inconsistent with declarant's testimony. NRS 51.035, subd. 2(a).
4. Criminal Law.
Defendant's rights under confrontation clause were not violated where witness claimed not to remember
out-of-court statements which were admitted, but witness was nevertheless present at trial, under oath, and
subject to full and effective cross-examination by defense. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Witness was not unavailable for cross-examination, thus violating defendant's constitutional right to
confront witnesses against him, where witness refused to testify about certain prior inconsistent
out-of-court statements, and refused to acknowledge that he remembered giving the statements, but where
witness testified to underlying facts of prosecution and was not ordered by court to testify about prior
inconsistent statements. NRS 51.035, subd. 2(a)(b); U.S.C.A.Const. Amend. 6.
6. Constitutional Law; Criminal Law.
Defendant's due process rights were not violated by admission into evidence of accomplice's prior
statements which were made after court sentencing accomplice stated that accomplice would receive no
consideration from court if accomplice failed to give a narrative of each individual's role in crime, where
court did not expressly or impliedly specify particular form narrative was to take. U.S.C.A.Const. Amend.
14.
7. Criminal Law.
For purposes of statute requiring corroborating evidence prior to conviction of defendant on testimony of
accomplice, corroboration evidence need not be found in single fact or circumstance and can, instead, be
taken from circumstances and evidence as whole. NRS 175.291.
8. Criminal Law.
For purposes of statute requiring corroboration evidence prior to conviction of defendant based on
testimony of accomplice, corroboration evidence need not in itself be sufficient to establish guilt, and will
satisfy statute if it merely tends to connect accused to offense. NRS 175.291.
9. Criminal Law.
For purposes of statute requiring corroboration evidence prior to conviction of defendant based on
testimony of accomplice, accomplice's testimony is not sufficiently corroborated merely by showing that
defendant was near scene of crime at time accomplice testified that they committed crime in concert. NRS
175.291.
10. Criminal Law.
For purposes of statute requiring corroboration evidence prior to conviction of defendant based on
testimony of accomplice, corroboration evidence was sufficient where defendant testified that accomplices
and defendant had constant association and companionship during day of murder, defendant was in room
shortly before accomplices robbed and killed victim, and defendant was with accomplices after criminal
event, and where tape recording showed that one alleged accomplice asked another alleged accomplice if
defendant had been arrested yet after they had been arrested for murder. NRS 175.291.
104 Nev. 500, 502 (1988) Cheatham v. State
OPINION
By the Court, Springer. J.:
Kenneth Loranzo Cheatham, Jean McKinnis, Clinton Long, and Melvin Howard were
accused of robbing and murdering a drug dealer named Melvin Douglas Arritt in McKinnis's
hotel room at the Circus Circus Hotel and Casino in Reno, Nevada. McKinnis, Long and
Howard all pleaded guilty to second degree murder. Cheatham proceeded to trial and was
convicted by a jury of second degree murder.
Cheatham's principal claims of error are the following: (1) that the trial court erred in
admitting hearsay statements by McKinnis; (2) that the trial court erred in admitting hearsay
statements by Long; and (3) that the trial court erred by finding that there was sufficient
evidence tending to connect Cheatham with the robbery and murder to corroborate the
accomplice testimony against him.
Cheatham challenges the admission into evidence of a tape recording of a conversation
between McKinnis and Long made while McKinnis and Long were incarcerated in the Santa
Clara jail. The damaging portion of the conversation consists of the following question by
McKinnis: Did they get Cheats?
1

[Headnote 1]
The trial court admitted the tape recording over hearsay objection on the ground that it
contained statements consistent with McKinnis's trial testimony in which McKinnis
implicated Cheatham in the robbery and murder of Arritt. Pursuant to NRS 51.035(2)(b), an
out-of-court statement is not inadmissible as hearsay if the declarant testifies at trial and is
subject to cross-examination concerning the statement and the statement is [c]onsistent with
his testimony and offered to rebut an express or implied charge against him of recent
fabrication or improper influence or motive. NRS 51.035(2)(b). Nevertheless, to be
admissible under NRS 51.035(2)(b) the prior consistent statement must have been made at a
time when the declarant had no motive to fabricate. Crew v. State, 100 Nev. 38, 675 P.2d 986
(1984); Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983).
[Headnote 2]
Cheatham's attack on the admissibility of the tape recorded statement is based solely on his
claim that Ms. McKinnis had every reason and every motive to fabricate. According to
Cheatham, McKinnis was motivated to fabricate by reason of her just having been arrested
for the murder of Arritt.
____________________

1
It is undisputed that the Cheats referred to by McKinnis is the appellant, Kenneth Cheatham.
104 Nev. 500, 503 (1988) Cheatham v. State
just having been arrested for the murder of Arritt. Being arrested for murder can certainly
motivate one to lie, but McKinnis was not addressing her accusers. The intercepted tape
recording was of a sub rosa, barely audible conversation between two persons, both accused
of the same murder charge that Cheatham was facing and under circumstances in which
neither party reasonably could have believed he or she was being overheard. The court can
find no fault in the trial court's determination that under the described circumstances there
was no apparent motive to fabricate on the part of either declarant and hold that the statement
was properly admissible under NRS 51.035(2)(b).
Cheatham also challenges the admission into evidence of statements made by Long at
Long's sentencing hearing. At Cheatham's trial, Long testified that Cheatham did not
participate in the robbery and murder of Arritt. The trial court admitted transcripts of Long's
sentencing hearingwhich contained statements by Long implicating Cheatham in the
robbery and murder of Arritton the ground that they were prior inconsistent statements.
[Headnotes 3, 4]
Pursuant to NRS 51.035(2)(a), an out-of-court statement is not inadmissible as hearsay if
the following two conditions are met: (1) the declarant testifies at trial and is subject to
cross-examination concerning the statement; and (2) the out-of-court statement is inconsistent
with the declarant's testimony. NRS 51.035(2)(a). Relying on Kaplan v. State, 99 Nev. 449,
633 P.2d 1190 (1983), Cheatham argues that Long's out-of-court statements were
inadmissible because Long was in effect unavailable for cross-examination because of Long's
persistence in refusing to testify about the statements and in refusing to acknowledge that he
remembered the statements.
2

[Headnotes 5, 6]
Pursuant to NRS 51.055(1)(b), a declarant is unavailable as a witness if he is [p]ersistent
in refusing to testify despite an order of the judge to do so. NRS 51.055(1)(b). In Kaplan, the
trial court allowed into evidence prior inconsistent out-of-court statements for
impeachment purposes, pursuant to NRS 51.035{2){a).
____________________

2
Cheatham similarly challenges the admission of Long's out-of-court statements on the ground that their
admission violated Cheatham's constitutional right to confront a witness against him. We do not believe that
Cheatham's rights under the confrontation clause were violated. Although Long claimed not to remember the
out-of-court statements, he was nevertheless present at trial, under oath, and subject to full and effective
cross-examination by the defense. See California v. Green, 399 U.S. 149, 162 (1970); Maginnis v. State, 93
Nev. 173, 561 P.2d 922 (1977). Moreover, we note that at trial Long testified favorably to Cheatham concerning
the underlying facts. See Nelson v. O'Neil, 402 U.S. 622, 627-30 (1971); State v. Cripps, 582 P.2d 312 (Mont.
1978).
104 Nev. 500, 504 (1988) Cheatham v. State
court allowed into evidence prior inconsistent out-of-court statements for impeachment
purposes, pursuant to NRS 51.035(2)(a). Since the declarant refused to testify at trial,
however, this court held in Kaplan that the declarant was unavailable as a witness pursuant to
NRS 51.055(1)(b) and further held that because the declarant was unavailable as a
witnessand thus not subject to cross-examination as required by NRS 51.035(2)(a)the
prior inconsistent statements were therefore inadmissible.
Under the circumstances of this case, Long cannot be said to have been unavailable for
cross-examination. First, NRS 51.055(1)(b) does not apply to Long since he was not
persistent in refusing to testify despite an order of the judge to do so. See NRS
51.055(1)(b) (emphasis supplied). Second, the present case is similarly distinguishable from
Kaplan, since the declarant in Kaplan refused to testify at all and was held in contempt by the
court. Unlike the declarant in Kaplan, Long testified as to the underlying facts of the robbery
and murder and was not ordered by the court to testify about the prior inconsistent statements.
3

Cheatham's remaining contention is that there was no evidence corroborating the
accomplice testimony presented by the prosecution. NRS 175.291 provides that:
A conviction shall not be had on the testimony of an accomplice unless he is
corroborated by other evidence which in itself, and without the aid of the testimony of
the accomplice, tends to connect the defendant with the commission of the offense; and
the corroboration shall not be sufficient if it merely shows the commission of the
offense or the circumstances thereof.
NRS 175.291.
[Headnotes 7, 8]
Corroboration evidence need not be found in a single fact or circumstance and can,
instead, be taken from the circumstances and evidence as a whole. La Pena v. State, 92 Nev.
1, 544 P.2d 1187 (1976). Corroboration evidence also need not in itself be sufficient to
establish guilt, and it will satisfy the statute if it merely tends to connect the accused to the
offense.
____________________

3
Cheatham additionally contends that his due process rights were violated by the admission of Long's prior
statements because the sentencing court had admonished Long that if Long failed to describe the role played by
each of the participants in the crime Long would receive no consideration from the court. We disagree. The
circumstances of the present case fail to suggest that they would reasonably have caused Long to believe that he
must testify in a particular fashion. At Long's sentencing, the trial court requested only that Long give a narrative
of each individual's role in the crime. The trial court neither expressly nor impliedly specified the particular form
the narrative was to take.
104 Nev. 500, 505 (1988) Cheatham v. State
merely tends to connect the accused to the offense. See State v. Hilbish, Et. Al., 59 Nev. 469,
97 P.2d 435 (1940).
[Headnotes 9, 10]
An accomplice's testimony is not sufficiently corroborated merely by showing that the
defendant was near the scene of the crime at the time the accomplice testified that they
committed the crime in concert. Austin v. State, 87 Nev. 578, 585, 491 P.2d 724, 729 (1971).
In the case before us, however, we have evidence of more than mere presence at the time and
place that the accomplices say the crime was committed. We have instead a chain of events
showing the constant association of Cheatham and the accomplices throughout the day that
the crime was committed. Cheatham testified that he traveled to Reno from San Jose in a car
with accomplices Long and Howard. He testified further that he was present with
accomplices McKinnis, Long and Howard in McKinnis's hotel room, the place where the
robbery and murder were committed, immediately prior to the commission of the crime.
Cheatham also testified that he was with accomplices McKinnis, Long and Howard after the
robbery and murder were committed. Finally, we learn from Cheatham that he had planned to
hitchike to Renopresumably because he had no money to travel by other meansbut was
able to afford to check into a motel room after the robbery.
It appears that we have a fairly constant association and companionship between the three
accomplices, McKinnis, Long and Howard, and Cheatham during the day that the crime was
committed in McKinnis's room. We know from Cheatham that he was in the room shortly
before his companions robbed and killed the victim, and we know that Cheatham was with
the murderers after the criminal event. All of this is much more persuasive, much more
coherent, than a mere showing that Cheatham was nearby at the time and place fixed by the
accomplices for the commission of the crime. Independent evidence tells us where the crime
was committed and approximately when. Cheatham's own testimony has him in the presence
of the murderers at the scene of the crime immediately before the crime was committed.
Cheatham is still with them after the robbery and murder, but now Cheatham has some
money. All of this evidence, taken together, is supplementary to that already given and
tending to strengthen or confirm it. Black's Law Dictionary 311 (5th ed. 1979).
Were the foregoing insufficient by way of corroborating evidence, its insufficiency would
be remedied by McKinnis's statement to Long in the Santa Clara jail, Did they get Cheats?
One certainly could infer from this unguarded, thought-to-be-confidential statement by
McKinnis that McKinnis expected the police to apprehend Cheatham because Cheatham
had participated in the robbery and murder of Arritt.4 Taking the circumstances and
evidence in this case as a whole, we conclude that there was sufficient corroboration
evidence tending to connect Cheatham to the robbery and murder of Arritt to sustain a
conviction.
104 Nev. 500, 506 (1988) Cheatham v. State
police to apprehend Cheatham because Cheatham had participated in the robbery and murder
of Arritt.
4
Taking the circumstances and evidence in this case as a whole, we conclude that
there was sufficient corroboration evidence tending to connect Cheatham to the robbery and
murder of Arritt to sustain a conviction.
Careful consideration of Cheatham's remaining contentions reveals them to be meritless.
Accordingly, we affirm the judgment of conviction.
Gunderson, C. J., and Steffen, Young, and Mowbray, JJ., concur.
____________________

4
Any ambiguity that may have existed in McKinnis's statement, Did they get Cheats?, is resolved by the
statement that immediately followed it: Did they get Melvin? As stated earlier, Melvin Howard pleaded guilty
to second degree murder. It is thus clear that McKinnis's queries as to the fates of Howard and Cheatham were
identically linked to the trio's past association as accomplices in the commission of a murder.
____________
104 Nev. 506, 506 (1988) Martin v. DeMauro Constr. Corp.
JOAN R. MARTIN and JOSEPH DeMAURO, Individually; and JOAN R. MARTIN, as
Executrix of the Estate of NICOLA DeMAURO, Appellants, v. DeMAURO
CONSTRUCTION CORPORATION, aka DeMAURO CORPORATION, aka DeMAURO
CONSTRUCTION COMPANY, MICHAEL DeMAURO, YOSHIKA MAJA DeMAURO,
and DAVID DeMAURO, Respondents.
No. 18433
September 21, 1988 761 P.2d 848
Appeal from an order granting DeMauro Construction's motion to dismiss. Second
Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Executrix sought judicial affirmation of proposed distribution of stock in Nevada
corporation. The district court granted corporation's motion to dismiss for forum non
conveniens, and executrix appealed. The Supreme Court held that it was error to dismiss the
action.
Reversed.
[Rehearing denied December 8, 1988]
McDonald, Carano, Wilson, Bergin, Frankovich and Hicks, Lenard T. Ormsby, Reno, for
Appellants.
104 Nev. 506, 507 (1988) Martin v. DeMauro Constr. Corp.
Woodburn, Wedge, Blakey & Jeppson, W. Chris Wicker, Reno, for Respondents.
Courts.
It was improper to dismiss executrix' action for judicial affirmation of proposed distribution of stock in
Nevada corporation on forum non conveniens grounds.
OPINION
Per Curiam:
In this appeal we reverse the order of the district court which dismissed this action on the
ground that Hong Kong was the proper forum for this litigation, and not Nevada.
Since Joan Martin, appellant and plaintiff below, was not a party to the agreements which
contain forum selection language, we decline to consider the applicability of these contractual
provisions and deal here only with the trial court's ruling as based upon the doctrine of forum
non conveniens.
At issue here is entitlement to share certificate number five of DeMauro Construction
Company. Appellant Martin, as executrix of the will of Nicola DeMauro, seeks judicial
affirmation in Nevada of her proposed distribution of the stock in this Nevada corporation.
Respondents do not contest the authenticity of the stock certificate. Martin has never been
an officer, director or shareholder of the corporation. Insufficient showing has been made that
convenience of the parties or availability of witnesses requires annulment of the Nevada
forum chosen by Martin. Of five witnesses identified by respondents, three are parties. There
is no showing of why parties or witnesses must go to Hong Kong in order to resolve the
rather narrow issue of stock ownership and distribution. The trial court erred in dismissing
this action on grounds of forum convenience. See Swisco, Inc. v. District Court, 79 Nev. 414,
385 P.2d 772 (1963); Eaton v. District Court, 96 Nev. 773, 616 P.2d 400 (1980).
The order of dismissal is reversed and the action is reinstated in the district court.
____________
104 Nev. 508, 508 (1988) Las Vegas Sun v. District Court
LAS VEGAS SUN, INC.; HERMAN MILTON GREENSPUN; and BRIAN LEE
GREENSPUN, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT, in and for the
County of Clark, State of Nevada; and THE HONORABLE JOSEPH S. PAVLIKOWSKI,
District Judge, Respondents, MILTON I. SCHWARTZ, CHECKER CAB COMPANY OF
NEVADA, INC., and YELLOW CAB COMPANY OF NEVADA, INC., Nevada
Corporations, Real Parties in Interest.
No. 17930
September 29, 1988 761 P.2d 849
Original petition for writ of mandamus or prohibition. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Subject of newspaper editorial brought libel action against newspaper and reporter. The
district court entered order allowing discovery of materials relating or pertaining to any
persons, organizations or documents specifically named in editorials, and reporters and
newspaper sought writ of prohibition. The Supreme Court, Springer, J., held that: (1)
disclosure of source and attributions of remark to source is clear-cut waiver of news shield
privilege as to that name and those statements; (2) during discovery process, news media
litigants can properly be required to admit and document precise matters disclosed in their
publications or broadcasts; (3) news media defendant who elects to protect confidentiality of
information may not thereafter waive confidentiality whenever it may suit defendant's
convenience, and may not thereafter rely on information for defense at trial, after plaintiff
attempts to discover basis of news story which is felt to defame him or her; and (4) reporter
did not adequately assert news shield privilege by merely reciting that news shield privilege
statute applied.
Petition granted with instructions.
Beckley, Singleton, DeLanoy, Jemison & List, Frances Forsman, Daniel F. Polsenberg,
Las Vegas; Rudin, Richman & Appel and Vincent Chieffo, Beverly Hills, California, for
Petitioners.
Gang & Berkley, Las Vegas; Lubell & Lubell and Mary K. O'Melveny, New York, New
York, for Real Parties in Interest.
Hale, Lane, Peek, Dennison & Howard and Gregg W. Zive, Reno, for Amicus Curiae.
104 Nev. 508, 509 (1988) Las Vegas Sun v. District Court
1. Statutes.
Statutes should be interpreted so as to effect intent of legislature in enacting them; interpretation should
be reasonable and avoid absurd results.
2. Witnesses.
Statute allowing waiver of privileges applies to all privileges included in privileges chapter of evidence
code, including news shield privilege, although on its face it appears to refer only to confidential matters.
NRS 49.015 et seq., 49.275, 49.385.
3. Witnesses.
Privilege may be waived even in absence of waiver statute.
4. Witnesses.
Disclosure of source and attribution of remarks to that source is clear-cut waiver of news shield privilege
as to that name and those statements. NRS 49.275.
5. Pretrial Procedure.
During discovery process, news media litigants can properly be required to admit and document precise
matters disclosed in their publications or broadcasts, in spite of news shield privilege. NRS 49.275.
6. Witnesses.
News shield privilege statute protects not only sources, but information. NRS 49.275.
7. Witnesses.
Under news shield statute, plaintiffs suing newspaper are not entitled to complete notes taken at
interview, even when source and part of interview have been disclosed. NRS 49.275.
8. Witnesses.
News shield law creates protective environment for reporter who is engaged in obtaining, preparing and
collecting information, but does not create special privilege for news media litigants. NRS 49.275.
9. Pretrial Procedure.
News media defendant will be deemed to have elected to protect confidentiality of information, which
confidentiality may not thereafter be waived whenever it may suit defendant's convenience, and defendant
may not thereafter rely on information for defense at trial, where plaintiff attempts to discover basis of
news story which is felt to defame him or her, and news media defendant relies on shield law to resist
discovery. NRS 49.275.
10. Witnesses.
Legislature meant to include newspaper publishers in its definition of editorial employees in news
shield privilege statue. NRS 49.275.
11. Witnesses.
Newspaper reporter who asserted news shield privilege by merely reciting news shield privilege statute
did not adequately claim privilege where claim was not supported by sworn affidavit identifying news
gatherer and attesting that information was obtained or produced during news gathering process in that
person's professional capacity. NRS 49.275.
104 Nev. 508, 510 (1988) Las Vegas Sun v. District Court
OPINION
By the Court, Springer, J.:
Petitioners request a writ of prohibition, asserting that the district court has exceeded its
jurisdiction by entering a discovery order against them which contravened the provisions of
NRS 49.275.
1
The writ will be granted, subject to instructions.
The discovery order was entered during the course of a libel suit brought by Milton
Schwartz against the petitioners herein, Herman and Brian Greenspun and the Las Vegas Sun.
Schwartz claims that he and two companies which he partly owns (the real parties in interest
in this case) were defamed by a series of editorials written by the Greenspuns and published
in the Las Vegas Sun. As part of his pretrial preparation, Schwartz attempted to discover a
wide range of materials relating to the editorials, which he believed were in the possession of
petitioners. Herman Greenspun answered Schwartz's requests by citing the Nevada news
shield law, NRS 49.275, claiming that statute granted him an absolute privilege not to
disclose any information.
Schwartz turned to the district court for relief. The court entered an order which allowed
discovery of materials relating or pertaining to any persons, organizations or documents
specifically named in the editorials. Petitioners assert that this order abrogates their statutory
news shield privilege, and they seek a writ of prohibition to assure their privilege.
We conclude that the discovery order is too broad and intrudes upon the statutory privilege
granted by the legislature. The possible harm resulting from the order cannot be undone on
appeal; therefore, we are disposed to grant the extraordinary relief of a writ. Schlatter v.
District Court, 93 Nev. 189, 561 P.2d 1342 (1977).
____________________

1
NRS 49.275 states:
No reporter, former reporter or editorial employee of any newspaper, periodical or press association or
employee of any radio or television station may be required to disclose any published or unpublished
information obtained or prepared by such person in such person's professional capacity in gathering,
receiving or processing information procured or obtained by such person, in any legal proceedings, trial
or investigation:
1. Before any court, grand jury, coroner's inquest, jury or any officer thereof.
2. Before the legislature or any committee thereof.
3. Before any department, agency or commission of the state.
4. Before any local governing body or committee thereof, or any officer of a local government.
104 Nev. 508, 511 (1988) Las Vegas Sun v. District Court
[Headnote 1]
To resolve this case, we must interpret and apply the Nevada news shield statute, NRS
49.275. Statutes should be interpreted so as to effect the intent of the legislature in enacting
them; the interpretation should be reasonable and avoid absurd results. Cragun v. Nevada
Pub. Employees' Ret. Bd., 92 Nev. 202, 547 P.2d 1356 (1976); Welfare Div. v. Washoe Co.
Welfare Dep't, 88 Nev. 635, 503 P.2d 457 (1972).
The legislative history behind the current shield law illustrates the legislators' concern with
protecting confidentiality during and after the news gathering process. The legislature enacted
the first shield law in 1969. It protected news media representatives from forced disclosure of
their sources. Members of the press argued that confidential sources had to be protected from
exposure to insure the free flow of information, particularly information about government
corruption or mismanagement. The public, they claimed, had a right to know about such
occurrences, but if sources were afraid to talk to reporters, the public's access to this valuable
information would be severely restricted. Supporters of the legislation argued that if reporters
could promise sources that their identities would not be revealed, sources would be more
likely to give reporters information, and this would benefit the public. See Senate Jud. Comm.
Minutes, S.B. 299, March 4, 1969 and March 27, 1969.
[Headnote 2]
The shield law was extended in 1975
2
to provide protection for former newsmen and for
unpublished information. Several states expanded their shield statutes in a similar fashion,
because some courts had applied the shield privilege exclusively to published information.
See, e.g., Cal. Evid. Code 1070 (West Supp. 1988) (revised in 1974 to include unpublished
information); Tofani v. State, 465 A.2d 413 (Md. 1983) (notes revision of Maryland law in
1979 to include unpublished information). Assemblyman Coulter told the Senate Judiciary
Committee that the bill would extend protection to a newsman's tools, i.e., notes, tape
recordings and photographs. The underlying rationale was the same as in 1969: serve the
public interest by protecting reporters in their news gathering efforts.
____________________

2
The news shield privilege became part of Chapter 49, Privileges, when the new Evidence Code was
adopted. 1971 Statutes of Nevada 787. The waiver statute, NRS 49.385, was adopted from Federal Rule 5-11
and inserted at the end of the chapter. We conclude the legislature meant the waiver statute to apply to all of the
privileges included in Chapter 49, although on its face it appears to refer only to confidential matters. See note
4, infra. Several of the privileges in Chapter 49 do not specifically refer to confidentiality, but we are confident
that the irregularity is due to the mixture of language from different sources, and not the intent of the legislature
to apply waiver only to the privileges which rest on confidentiality.
104 Nev. 508, 512 (1988) Las Vegas Sun v. District Court
reporters in their news gathering efforts. See Senate Jud. Comm. Minutes, A.B. 381, May 1,
1975.
None of the witnesses at either set of hearings asked for a change in the law concerning
defamation, libel or slander. None of the legislators expressed any intention to protect news
media organizations from libel suits. In fact, the press assured the legislators that the
newsman's shield would have no effect on the law of libel.
3
Nevertheless, we are now faced
with a conflict between the plaintiff's need to produce evidence and the media defendant's
right to avoid disclosure of its sources and other information in its possession. We recognize
that the best evidence of libel is often in the possession of the defendant, but the news shield
statute prevents the plaintiff from fully exploring this readily available source.
We addressed this conflict in Newburn v. Howard Hughes Medical Institute, 95 Nev. 368,
594 P.2d 1146 (1979). Newburn, a reporter, had voluntarily disclosed some of the
information he had concerning a purported will made by Howard Hughes in a conference
with representatives of the Hughes estate. He then refused to answer any questions regarding
the will at a deposition, relying on NRS 49.275. Our opinion is Newburn held that the waiver
statute, NRS 49.385,
4
applied to all of the privileges in Chapter 49, including the shield law.
We did not, however, fully delineate the scope of that waiver. The majority opinion allowed
discovery of all of the information Newburn had relating to the subject of his voluntary
disclosure, but two dissents objected to the scope of that ruling, arguing it was too broad and
contravened the underlying purpose of the shield law. 95 Nev. at 372, 594 P.2d at 1149
(Mowbray, J.); id. at 374, 594 P.2d at 1150 (Gunderson, J.).
____________________

3
Confidentiality of news sources and background information do not change the laws of libel one whit. .
. . A newspaper is responsible for what it prints, whether it names its sources or not. Truth and/or malice
are still the determinants of libel, not shield laws.
Statement of Warren Lerude, Senate Jud. Comm. Minutes, A.B. 381, May 1, 1975. This point of view was also
articulated by Petitioner Greenspun in one of his editorials:
There is nothing magic about a newspaper because it is subject to all the remedies the law grants to
people who are unfairly accused, slandered, libeled or maliciously harassed.
Where I Stand, Las Vegas Sun, January 10, 1985, at 2A, col. 4.

4
NRS 49.385 states:
1. A person upon whom these rules confer a privilege against disclosure of a confidential matter
waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the matter.
2. This section does not apply if the disclosure is itself a privileged communication.
104 Nev. 508, 513 (1988) Las Vegas Sun v. District Court
[Headnotes 3-5]
Today we again hold that a waiver under NRS 49.385 applies to the news gatherers'
privilege and describe more definite limitations on the breadth of waiver in matters relating to
discovery of information held by news media defendants. First, we note that a privilege may
be waived even in the absence of a waiver statute. Tofani, supra, 465 A.2d at 417. Second,
we conclude that the disclosure of a source and the attribution of remarks to that source is a
clear cut waiver of the shield privilege as to that name and those statements. When a
newspaper or broadcaster names its source and quotes statements made by that source, the
underlying purpose of the shield law is vitiated and the statutory privilege is waived.
Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374 (Ky. 1984); In re Bridge, 295 A.2d 3
(N.J. 1972), cert. den. 410 U.S. 991 (1973). There is no claim of confidentiality to be made
under these circumstances, as conceded by petitioners at the appeal hearing.
5
Therefore,
during the discovery process, news media litigants can properly be required to admit and
document the precise matters disclosed in their publications or broadcasts.
[Headnotes 6, 7]
The law plainly prohibits additional discovery. The statute protects not only sources, but
information. Plaintiffs are not entitled to the complete notes taken at an interview, even when
the source and part of the interview have been disclosed. Plaintiffs are not entitled to
background information or to outtakes of television broadcasts. See Hammarley v. Superior
Court, 89 Cal.App.3d 388 (1979). The legislative intent to protect the confidentiality of the
materials and sources necessary to carry on the news gathering process in a manner which
best serves the public is clear from the relevant history and the statute itself.
[Headnote 8]
Before concluding, it should be noted that our ruling today will not allow a media
defendant totally to avoid accountability for defamatory utterances through manipulative use
of the shield law. The shield law creates a protective environment for the reporter who is
engaged in obtaining, preparing and collecting information. It does not create a special
privilege for news media litigants, however.
____________________

5
At oral argument of this case, petitioners' counsel explicitly acknowledged in this regard: That's not the
position that we are taking today. Counsel categorically disavowed any intent to assert that a reporter has a right
to identify and quote a certain source in a news story, and thereafter to refuse discovery as to whether or not the
story was true in such particulars. Counsel stated: I do not make that claim, your Honor. What I am saying is
that the fact that you quoted that person does not then waive the rest of the material as to all other documents.
104 Nev. 508, 514 (1988) Las Vegas Sun v. District Court
[Headnote 9]
There are no data suggesting that the legislature intended to allow the news media to
commit libel, free from responsibility, or to disrupt the carefully balanced structure of civil
procedure.
6
See Holloway v. Barrett, 87 Nev. 385, 487 P.2d 501 (1971). Thus, we conclude
that certain restrictions are necessary to prevent news media litigants from abusing the shield
law. When a plaintiff attempts to discover the basis of a news story which is felt to defame
him or her, and the news media defendant relies on the shield law to resist discovery, the
defendant will be deemed to have thereby elected to protect the confidentiality of that
information. Once the defendant has made such an election, confidentiality may not thereafter
be waived whenever it may suit the defendant's convenience; and the defendant may not
thereafter rely on it for a defense at trial. In our opinion, this position is a suitable and
necessary compromise between the needs of the plaintiff, the orderly conduct of a trial, and
the statutory privileges of news media representatives. See Dowd v. Calabrese, 577 F.Supp.
238, 244 (U.S.D.C. 1983); Mazella v. Philadelphia Newspapers, Inc., 479 F.Supp. 523, 529
n.3 (E.D.N.Y. 1979) Greenberg v. CBS Inc., 419 N.Y.S.2d 988, 997 (1978).
We are convinced that the legislature did not intend to allow the use of the news shield law
as a sword in libel suits. We see no reason why a news media defendant should be able to rely
on the privilege until the day of trial, then renounce the privilege and use previously
undisclosed information as a defense against the plaintiff's evidence of negligence, reckless
disregard of the truth, or actual malice. Such a dual, selectively self-serving use of the shield
privilege would result in excessive prejudice to the plaintiff and waste judicial resources. The
code of civil procedure was adopted in part to streamline the discovery process and prevent
surprise at trial. There is no evidence that the legislature enacted the shield law as a
circumvention of normal court procedure; therefore, if attempted, our courts could not allow
such disruption.
[Headnotes 10, 11]
Finally, in passing, we note there is a serious question in this case about the manner in
which the privilege has been claimed. The privilege was asserted by Herman Greenspun
alone, by a mere recitation of NRS 49.275. This response is not adequate to claim the
privilege, which is personal to the reporter, former reporter, or editorial employee"7 who
obtained or prepared the requested information in his or her professional capacity in the
process of gathering news.
____________________

6
The procedures of court are within our jurisdiction, not the legislature's. We are not prepared, however, to
go as far as our sister court in New Mexico and declare the shield statute invalid for that reason. Ammerman v.
Hubbard Broadcasting, 551 P.2d 1354 (N.M. 1976), cert. den. 436 U.S. 906 (1978).
104 Nev. 508, 515 (1988) Las Vegas Sun v. District Court
reporter, or editorial employee
7
who obtained or prepared the requested information in his
or her professional capacity in the process of gathering news. Apparently neither Greenspun
nor anyone else swore to the facts supporting the claim of privilege in affidavits presented to
the district court. Absent compliance with the statutory requisites, no privilege of
nondisclosure ought to be recognized. Any further claims should be supported by sworn
affidavits, identifying the news gatherer and attesting that the information was obtained or
produced during the news gathering process in that person's professional capacity.
The writ of prohibition will be issued, and notice in lieu of remittitur shall issue forthwith.
The district court shall control further discovery in accordance with this opinion. Because the
implications of invoking the protections of the shield law have not previously been articulated
by this Court, the petitioners shall be permitted to re-evaluate the manner in which they
asserted their claim of the shield law privilege.
Gunderson, C. J., and Steffen, Young, and Mowbray, JJ., concur.
____________________

7
We are satisfied that the legislature meant to include newspaper publishers in its definition of editorial
employees. See Senate Jud. Comm. Minutes, A.B. 381, March 7, 1969.
____________
104 Nev. 516, 516 (1988) City of Mesa Vista v. Pelham
IN THE MATTER OF THE INCORPORATION OF THE CITY OF MESA VISTA,
BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA, on Behalf
of Sunrise Manor and Paradise, Unincorporated Towns of Clark County; COUNTY OF
CLARK, a Political Subdivision of the State of Nevada; CITY OF NORTH LAS VEGAS,
NEVADA, a Political Subdivision of the State of Nevada; CITY OF HENDERSON,
NEVADA, a Political Subdivision of the State of Nevada; and CITY OF BOULDER CITY,
NEVADA, a Political Subdivision of the State of Nevada, and CITIZENS AGAINST
INCORPORATION, Appellants, v. TONY PELHAM and DONNA COX, Respondents.
No. 17969
October 10, 1988 762 P.2d 879
Appeal from judgment of the district court declaring the city of Mesa Vista duly
incorporated. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Following declaration that towns had been incorporated into municipality by the district
court challenge was brought. The Supreme Court held that: (1) failure to apprise all affected
persons of municipal incorporation invalidated petition, and (2) when municipal corporation
petition takes place of election, petition is scrutinized closely.
Reversed.
Rex Bell, District Attorney and James M. Bartley, Chief Civil Deputy District Attorney,
Clark County, for Appellant Board of County Commissioners of Clark County, Nevada.
Roy A. Woofter, City Attorney and Lisa Conroy, Deputy City Attorney, North Las Vegas,
for Appellant City of North Las Vegas, Nevada.
Shauna Hughes, City Attorney and Andrew J. Urban, Assistant City Attorney, Henderson,
for Appellant City of Henderson, Nevada.
Bill Andrews, City Attorney, Boulder City, for Appellant City of Boulder City, Nevada.
Moran & Weinstock, Las Vegas, for Appellants.
Tony J. Pelham and Donna C. Cox, In Proper Person, Respondents.
104 Nev. 516, 517 (1988) City of Mesa Vista v. Pelham
George F. Ogilvie, City Attorney, Las Vegas, for Amicus Curiae.
1. Municipal Corporations.
Failure of proponents of municipal incorporation, to notify residents of other well-defined towns that
their towns would also be incorporated into municipality, rendered incorporation petition invalid and
precluded incorporation particularly where no election was held; notice of incorporation had only
mentioned that one such town would be incorporated. NRS 266.020, subds. 1, 3 (Repealed).
2. Municipal Corporations.
Proper notice of municipal incorporation must, at very least, apprise those who are likely to be affected
by the proposal that their rights may be involved. NRS 266.020, subds. 1, 3 (Repealed).
3. Municipal Corporations.
When municipal incorporation petition takes place of an election, the petition is a form of an election and
must be scrutinized closely. NRS 266.005 et seq.; NRS 266.020, 266.020, subd. 3 (Repealed).
OPINION
Per Curiam:
This is an appeal from a judgment of the district court granting respondents' proper person
petition and declaring the city of Mesa Vista duly incorporated. Because respondents' petition
failed to give proper notice to the inhabitants of the proposed city as required by former NRS
266.020(3),
1
we reverse.
The east side of Las Vegas is presently divided into several unincorporated towns. Each of
these towns has well defined and well known boundaries. Three of these towns are involved
in this matter: East Las Vegas, Paradise and Sunrise Manor. These three towns share some
common boundaries. The area which respondents wish to incorporate includes all of the
present East Las Vegas and parts of Paradise and Sunrise Manor. There are presently
(according to the most recent census) 12,958 inhabitants of the proposed area to be
incorporated as the city of Mesa Vista.
[Headnote 1]
Sometime in early 1986, respondent Tony Pelham and numerous residents in East Las
Vegas began considering the possibility of incorporating the area of East Las Vegas. Under
the statutes in effect in 1986, incorporation was affected by obtaining on a proper petition
signatures of a majority of the qualified electors in the area proposed to be incorporated. See
former NRS chapter 266.
____________________

1
Former NRS 266.020 was repealed by the legislature in 1987 as part of the legislature's complete revision of
the statutes governing the incorporation of cities. See 1987 Nev. Stat., ch. 712 97 at 1733.
104 Nev. 516, 518 (1988) City of Mesa Vista v. Pelham
chapter 266. In order to be a qualified elector, a person had to be a registered voter and an
owner of real property. See former NRS 266.020(1). Former NRS 266.020(3), however,
required that a public meeting be held to discuss the topic of incorporation before any
signatures could be obtained on a petition for incorporation. Therefore, on September 19,
1986, a notice of a public meeting to consider incorporating the town of East Las Vegas
was published in the Las Vegas Review Journal and the Las Vegas Sun, newspapers of
general circulation in Clark County. Also, a notice of the public meeting was posted in
eighteen locations in the East Las Vegas area on September 18 and 19, 1986. The sufficiency
of the notice of the September 29, 1986, meeting is the subject of this appeal.
A public meeting was held on September 29, 1986, for the purpose of considering whether
to incorporate the town of East Las Vegas. Approximately one hundred persons attended. At
this meeting, the name Mesa Vista was selected for the proposed city. Pelham and his
volunteers obtained signatures on petitions for incorporation and, on October 20, 1986,
believing that he had obtained sufficient signatures, Pelham filed his petition for the
declaration of the incorporation of the City of Mesa Vista in the district court. Following
several hearings, the district court granted Pelham's petition and declared the city of Mesa
Vista duly incorporated. This appeal followed.
The boundaries of the proposed city of Mesa Vista include all of the present area of the
unincorporated town of East Las Vegas, and portions of the unincorporated towns of Paradise
and Sunrise Manor. Appellants contend that Pelham failed to give any notice to the residents
of Paradise and Sunrise Manor of the September 29, 1986, meeting to consider the question
of incorporating the city of Mesa Vista.
NRS 266.020(3) provided prior to its repeal in 1987 as follows:
3. No names may be subscribed to the application or petition for incorporation until
after a public hearing on the issue of incorporation. Notice of the hearing must be
published in a newspaper of general circulation and posted in three separate, prominent
places within the area to be incorporated at least 10 days before the hearing.
There is no genuine issue raised as to respondents' literal compliance with the terms of this
statute, i.e., notice was published in two newspapers of general circulation in Clark County
and notices of the hearing were posted in eighteen locations in the area. Some of these notices
were posted within the boundaries of Paradise and Sunrise Manor. Nevertheless, appellants
contend that the content of the notices was insufficient to apprise residents of Paradise
and Sunrise Manor that the proposed incorporation might affect them.
104 Nev. 516, 519 (1988) City of Mesa Vista v. Pelham
that the content of the notices was insufficient to apprise residents of Paradise and Sunrise
Manor that the proposed incorporation might affect them. Appellants contend that notice
must include a description of the territory to be incorporated. See, e.g., Public Serv. Comm'n
v. Southwest Gas, 99 Nev. 268, 271, 662 P.2d 624, 626 (1983) ([i]nherent in any notice and
hearing requirement are the propositions that the notice will accurately reflect the subject
matter to be addressed . . .).
The notice that ran in the newspapers on September 19, 1986, stated:
Legal Notice: On September 29, 1986, at 7:00 p.m. there will be a public meeting held in the
community building, 5700 E. Missouri, East Las Vegas, Nevada. Incorporating the town of
East Las Vegas will be the topic of discussion pursuant to NRS 266.
(Emphasis added.) Similarly, the eighteen notices that were posted in the area stated:
Attention: Special East Las Vegas Town Meeting.
Agenda: Incorporation
Monday, Sept. 29, 19867:00 p.m.
East Las Vegas Community Center
5700 Missouri Ave.
(Emphasis added.) These notices do not make any reference to the fact that the proposed city
would include portions of Paradise and Sunrise Manor. Because East Las Vegas is an existing
town with well defined boundaries, residents of Paradise and Sunrise Manor would not
suspect that the incorporation of East Las Vegas might affect them.
The inclusion of portions of Paradise and Sunrise Manor in the proposed new city resulted
in a substantial increase in the population, territory and tax-base over that which would be
involved in the incorporation of the town of East Las Vegas alone. Thus, it was important that
some indication in the notice be given that the area to be involved was not East Las Vegas
only. Other states have held that a proper notice is absolutely essential to the validity of any
petition to create a municipal corporation. See, e.g., Val d'Gore, Inc. v. Town Council of
Town of Vail, 566 P.2d 343 (Colo. 1977) (where notice of proposed annexation included
indefinite and uncertain description of municipal boundaries, notice was ineffective as to
persons whose property was not properly described); State v. Owens, 109 So. 423 (Fla. 1926)
(boundaries of municipal governments must be well-defined, and notice which did not give
boundaries was ineffective under statute which required notice to include boundaries);
Dickerson v. Sharpe, 164 S.W.2d 945 {Ky.
104 Nev. 516, 520 (1988) City of Mesa Vista v. Pelham
Sharpe, 164 S.W.2d 945 (Ky. 1942) (notice requirement was strictly construed and argument
that the purpose of notice had been satisfied was rejected where proper notice had not been
given); State v. Sutton, 3 N.W.2d 106 (N.D. 1942) (where statutes did not expressly require
notice, court implied notice requirement because a fundamental element of American
jurisprudence is that persons interested in a legal proceeding which may affect their rights
must be given notice); State v. Herschberger, 201 P. 2 (Wash. 1921) (action to incorporate
city was held void where notice did not specify the boundaries of the proposed city).
[Headnote 2]
Former NRS 266.020(3) did not expressly require that the notice of the public meeting
give an accurate description of the boundaries of the proposed city. Nevertheless, a proper
notice must, at the very least, apprise the individuals who are likely to be affected by the
proposed action that their rights may be involved. See Public Serv. Comm'n v. Southwest
Gas, 99 Nev. 268, 271, 662 P.2d 624, 626 (1983). There are few, if any, acts of state bearing
upon individuals . . . more important than those which determine their liberty to be included
in particular municipalities. . . . St. Ex Rel. Quimby v. City Reno, 71 Nev. 144, 157, 282
P.2d 1071, 1077 (1955) (citation omitted); see Territory ex rel. Kelly v. Stewart, 23 P. 405
(Wash. 1890). In this case, the residents of Paradise and Sunrise Manor were notified that a
neighboring town was considering incorporation. They were never notified that they would be
included in the proposed city.
2

[Headnote 3]
Former NRS Chapter 266 allowed for the incorporation of new cities without an election.
Essentially, the signatures on the petition took the place of an election. When the petition
itself is the basis for the legal action to be taken, rather than the precursor of other action such
as an election, the petition is a form of election, and must be closely scrutinized. See St. Ex
Rel. Quimby v. City Reno, 71 Nev. 144, 282 P.2d 1071 (1955). Strict compliance with the
statute is mandatory. We conclude that respondents' petition did not comply with former NRS
266.020(3), because proper notice was not given to a significant number of the residents of
the proposed city.
____________________

2
Pelham argues that, in addition to the required statutory notice, Channel 8 television ran two broadcasts of a
news program where Pelham discussed the possibility of incorporating East Las Vegas, and showed the map of
the proposed city of Mesa Vista. The name of this news program, however, was Incorporation of East Las
Vegas. There is no indication in the record that this program included notice to the residents of Paradise and
Sunrise Manor that the incorporation would directly affect them.
104 Nev. 516, 521 (1988) City of Mesa Vista v. Pelham
number of the residents of the proposed city. The petition was therefore invalid, and the
district court erred in granting the petition. In light of this conclusion, it is unnecessary to
reach the remaining contentions and arguments raised by the parties. We reverse the
judgment of the district court.
3

____________________

3
In light of this opinion, we deny as moot Pelham's requests for leave to appear and orally argue this appeal
in proper person.
____________
104 Nev. 521, 521 (1988) State v. Wright
THE STATE OF NEVADA, Appellant, v. HERBERT
IRVING WRIGHT, Respondent.
No. 18276
October 24, 1988 763 P.2d 49
Appeal from an order granting respondent's motion to suppress evidence. Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Defendant, who was charged with drug trafficking, filed a motion to suppress the evidence
of drugs on the basis that the initial stop of his automobile, in which the drugs were found,
was unlawful. The district court granted defendant's motion, and State appealed. The
Supreme Court held that: (1) the officers had a particularized and objective basis for stopping
defendant's vehicle, and (2) the inventory search in which evidence of narcotics and a firearm
was found, was properly conducted.
Reversed.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Thomas L.
Leen, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, George E. Franzen, Deputy Public Defender, Clark
County, for Respondent.
1. Arrest.
Police officers had particularized and objective basis for stopping defendant's vehicle, as officers
reasonably relied on police report which stated that 1974 black over white Ford Torino had been involved
in robbery which occurred night before officers stopped defendant's vehicle, in same general area and at
same time of night, and defendant's vehicle was 1972 black over white Mercury Montego. U.S.C.A.Const.
Amend. 4.
2. Searches and Seizures.
Discovery of bullet lying in plain view on floorboard of defendant's automobile was not unlawful, as
underlying stop of defendant was reasonable and lawful. U.S.C.A.Const. Amend. 4.
104 Nev. 521, 522 (1988) State v. Wright
3. Searches and Seizures.
Presence of bullet in plain view on floorboard of defendant's car could reasonably indicate presence of
gun, justifying search of passenger car compartment to insure police officers' safety. U.S.C.A.Const.
Amend. 4.
4. Arrest.
Arrest of defendants for possession of firearm by felons was justified, as prior to discovery of gun in
defendant's car, defendants told arresting officers they were ex-felons. NRS 202.360.
OPINION
Per Curiam:
On July 19, 1985, respondent Herbert Irving Wright was stopped by police officers while
driving in Las Vegas. The officers' attention was drawn to Wright's vehicle because it was a
1972 black over white Mercury Montego. An elderly couple had been robbed nearby the night
before, at about the same time, and the suspects had escaped in a vehicle reported to be a
1974 black over white Ford Torino. The officers decided to investigate Wright's vehicle,
believing it might be the one involved in the robbery.
As the officers pulled up behind Wright's vehicle, they noticed that the right-hand signal
was flashing, but the car was not moving to the right. The officers then signaled Wright to
pull over, but he traveled approximately 100 feet before doing so. This conduct aroused the
officers' suspicions.
After stopping the car, Wright and his companion got out and approached the police. It
was immediately obvious that the two men were white, while the robbery suspects were
black. Since the vehicle itself could have been used in the robbery, Officer Kravetz examined
it,
1
while Officer Sheffer questioned the two men. They admitted they were ex-felons. While
walking around the car, Kravetz observed a bullet lying on the front floorboard. He
communicated this information to Sheffer, who began to search the men. Kravetz opened the
front door of the car, looked under the front seat, and found a gun. Both men were then
arrested for being ex-felons in possession of a firearm. NRS 202.360. A subsequent inventory
search of the car resulted in the discovery of 238 grams of methamphetamine.
When the state brought charges against Wright for drug trafficking, he filed a motion to
suppress the evidence of drugs on the basis that the initial stop of the car was unlawful.
____________________

1
The eyewitnesses to the robbery told the police that the escape vehicle had bumped into another car as the
perpetrators left the scene of the crime. If Wright's vehicle had been involved, the officer could have found signs
of front-end damage.
104 Nev. 521, 523 (1988) State v. Wright
basis that the initial stop of the car was unlawful. The district court granted the motion,
reasoning that the stop closely resembled a general roadblock and therefore infringed upon
respondent's fourth amendment rights. For the reasons expressed in this opinion, we reverse
the decision of the district court.
[Headnote 1]
A stop is lawful if police reasonably suspect that the persons or vehicles stopped have been
involved in criminal activity. United States v. Cortez, 449 U.S. 411 (1981); Stuart v. State, 94
Nev. 721, 587 P.2d 33 (1978); Ildefonso v. State, 88 Nev. 307, 496 P.2d 752 (1972); NRS
171.123. Officers Kravetz and Sheffer reasonably relied on a police report which stated that a
1974 black over white Ford Torino had been involved in a robbery. The robbery had occurred
the night before the officers spotted Wright's vehicle, in the same general area and at the same
time of night. The officers could reasonably decide that vital information could be obtained
from examining the vehicle and briefly questioning its occupants. This provided a
particularized and objective basis for stopping Wright's vehicle. Cortez, supra, 449 U.S. at
417.
[Headnotes 2-4]
We conclude that the stop was reasonable and lawful, and did not violate respondent's
constitutional rights. The bullet found lying on the floorboard was in plain view; therefore its
discovery was not unlawful.
2
California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809 (1986);
Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972). The presence of a bullet could
reasonably indicate the presence of a gun, justifying a search of the passenger compartment to
insure the officers' safety. Michigan v. Long, 463 U.S. 1032 (1983). Wright and his
companion had already told the officers they were ex-felons, justifying their arrest on the
possession charge. The inventory search was properly conducted pursuant to the arrest.
Illinois v. Lafayette, 462 U.S. 640 (1983).
The motion to suppress the evidence of drugs found in Wright's vehicle was erroneously
granted. We therefore reverse the order of the district court.
____________________

2
The car was stopped at night and Kravetz used a flashlight to make his examination, but the use of a
flashlight does not intrude on fourth amendment rights. Texas v. Brown, 460 U.S. 730, 740 (1983).
____________
104 Nev. 524, 524 (1988) State, Dep't Mtr. Vehicles v. Brown
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. CLIFTON W. BROWN, Respondent.
No. 18409
October 24, 1988 762 P.2d 882
Appeal from an order of the district court reversing a determination of the Nevada
Department of Motor Vehicles and Public Safety revoking respondent's driving privileges.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Appeal was taken from an order of the district court reversing a determination of the
Department of Motor Vehicles and Public Safety revoking driving privileges. The Supreme
Court held that driver's voluntary intoxication did not constitute a condition rendering him
incapable of refusal of an evidentiary blood-alcohol test, within meaning of implied consent
statute, so as to preclude one-year license revocation for driver's refusal to take test.
Reversed and remanded with instructions.
Brian McKay, Attorney General, Carson City; Neil H. Friedman, Deputy Attorney
General, Las Vegas, for Appellant.
Greenman, Goldberg & Raby, Las Vegas; Beckley, Singleton, DeLanoy, Jemison & List
and Daniel F. Polsenberg, Las Vegas, for Respondent.
Automobiles.
Driver's voluntary intoxication did not constitute a condition rendering him incapable of refusal of an
evidentiary blood-alcohol test, within meaning of implied consent statute, so as to preclude one-year
license revocation for driver's refusal to take test. NRS 484.383, subds. 1, 3, 484.385, subd. 1.
OPINION
Per Curiam:
Clifton Brown was arrested for driving under the influence of alcohol. When Brown was
requested to take an evidentiary blood-alcohol test, pursuant to Nevada's implied consent law,
he refused, and his driver's license was subsequently revoked for the statutory one-year
period. As Brown later pleaded guilty, the one-year license revocation was added to the
penalties imposed for his DUI conviction.
Brown appealed the revocation of his license to the DUI Adjudicator. The DUI
Adjudicator affirmed the revocation, and Brown appealed to the district court.
104 Nev. 524, 525 (1988) State, Dep't Mtr. Vehicles v. Brown
Brown appealed to the district court. Concluding that Brown's intoxicated condition rendered
him incapable of withdrawing his consent, the district court reversed the decision of the DUI
Adjudicator. This appeal by the State of Nevada, and the Nevada Department of Motor
Vehicles and Public Safety followed. Because we conclude that as a matter of law a driver's
voluntary intoxication, by itself, may not render him incapable of refusing to take an
evidentiary test, we reverse the judgment of the district court.
Discussion
Pursuant to NRS 484.383(1), any person driving a vehicle on a public road is deemed to
have given consent to an evidentiary test for the purpose of determining the alcoholic content
of his blood or the presence of a controlled substance. Nevada law, NRS 484.384(1) and NRS
484.385(1), further provides that failure to submit to an evidentiary test results in revocation
of driving privileges for a minimum of one year. As the district court concluded that Brown's
intoxicated condition rendered him incapable of withdrawing his consent, this case is
controlled by NRS 484.383(3), which provided as follows:
Any person who is dead, unconscious, or otherwise in a condition rendering him
incapable of refusal shall be deemed not to have withdrawn his consent, and any such
test may be administered whether or not the person is informed that his failure to
submit to the test will result in the revocation of his privilege to drive a vehicle.
(Emphasis supplied.)
The sole issue on appeal is whether Brown's excessive, voluntary intoxication constitutes a
condition rendering him incapable of refusal such that he shall be deemed not to have
withdrawn his consent. As this issue arises from ambiguity in NRS 484.383(3), resolution of
this appeal is a matter of statutory construction.
1

We believe that Brown's contentionthat his voluntary intoxication allows him to escape
the effect of Nevada's implied consent lawsis negated by the language of NRS 484.383(3),
which speaks of a person who is "dead, unconscious, or otherwise in a condition
rendering him incapable of refusal."
____________________

1
We are mindful of Brown's argument that once he pleaded guilty to the offense of driving under the
influence of intoxicating liquor the revocation of his license no longer served a purpose. Nevertheless, we do not
find this argument persuasive. Although the implied consent statute is clearly intended to promote the
enforcement of Nevada's DUI statute, the statutes are separate and distinct and, in the absence of any evidence of
legislative intent to the contrary, should be enforced independently of one another. Cf. State v. Uehara, 721 P.2d
705 (Haw. 1986).
104 Nev. 524, 526 (1988) State, Dep't Mtr. Vehicles v. Brown
speaks of a person who is dead, unconscious, or otherwise in a condition rendering him
incapable of refusal. It is a well settled rule of statutory construction that where a general
term in a statute follows specific words of a like nature, the general term takes its meaning
from the specific words. See, e.g., Young Elec. Sign Co. v. Erwin Elec. Co., 86 Nev. 822, 477
P.2d 864 (1970). Unconsciousness and death are clearly of a like nature; both terms denote a
condition in which a person is unable either to comprehend or to respond to his environment
in any significant manner. We must conclude, however, that voluntary intoxication, even
when grossly excessive, cannot fairly be included in the same semantic category with
unconsciousness and death. See Sweitzer v. Dep't of Transp., M.V.D., 683 P.2d 335
(Ariz.App. 1984).
Had the legislature intended that voluntary intoxication be a condition rendering a driver
incapable of refusal, language to that effect could easily have been inserted in the statute.
Clearly, there is no reference in NRS 484.383(3) to intoxication as a condition rendering a
driver incapable of refusal, and we decline to create such a reference judicially where, for the
most obvious of policy reasons, the legislature has chosen not to. Cf. State v. Pendley, 593
P.2d 755 (N.M.App. 1979); County of Natrona v. Casper Air Serv., 536 P.2d 142 (Wyo.
1975).
Finally, statutes must be given a reasonable construction with a view to promoting rather
than defeating the legislative policy behind them. See NL Industries v. Eisenman Chemical
Co., 98 Nev. 253, 645 P.2d 976 (1982). As we have previously expressed, the legislative
policy behind Nevada's implied consent statute is to remove intoxicated drivers from
Nevada's highways. See Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982). We believe that
to allow a driver's culpability to decrease as his state of intoxication increases offends not
only the legislative policy behind Nevada's implied consent statute but common sense as well.
Cf. Gaunt v. Motor Vehicle Div., Dep't of Transp., 666 P.2d 524 (Ariz.App. 1983).
For the above reasons, we join the numerous jurisdictions that have interpreted statutory
provisions similar to those in NRS 484.383(3) to preclude voluntary intoxication, by itself, as
a condition rendering a driver incapable of refusal. See e.g., Sweitzer, 683 P.2d at 337; Bush
v. Bright, 264 Cal.App. 2d 788, 71 Cal.Rptr. 123 (1968); State v. Uehara, 721 P.2d 705
(Haw. 1986); Oaks v. State, Dep't of Licensing, 645 P.2d 708 (Wash.App. 1982).
Accordingly, we reverse the judgment of the district court and remand this matter with
instructions to reinstate the decision of the DUI Adjudicator affirming the revocation of
Brown's driving privileges.2
104 Nev. 524, 527 (1988) State, Dep't Mtr. Vehicles v. Brown
the decision of the DUI Adjudicator affirming the revocation of Brown's driving privileges.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 527, 527 (1988) Nevada Emp. Sec. Dep't v. Capri Resorts
NEVADA EMPLOYMENT SECURITY DEPARTMENT,
Appellant, v. CAPRI RESORTS, INC., Respondent.
No. 18415
October 24, 1988 763 P.2d 50
Appeal from a judgment of the district court, reversing the determination of appellant's
Board of Review and holding that respondent is not liable for the payment of unemployment
compensation taxes. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Developer brought action to challenge payment of unemployment compensation taxes for
timeshare sales agents. The district court determined that agents were not employees for
purpose of unemployment compensation. Appeal was taken. The Supreme Court held that
agents were not employees under unemployment compensation law.
Affirmed.
Crowell, Susich, Owen & Tackes, Ltd., Carson City, for Appellant.
Donald C. Hill, Carson City, for Respondent.
1. Social Security and Public Welfare.
Timeshare sales agents, who sold right to use property for period of time, were not employees under
unemployment compensation law, but were exempt as licensed real estate salespersons. NRS
119A.130, 119A.170, subd. 4, 119A.190, 119A.210, 119A.220, subd. 4, 119A.230, 119A.270, subd. 4,
119A.370, 612.010 et seq., 612.133.
2. Administrative Law and Procedure; Statutes.
District court owes deference to administrative decision, but may properly undertake independent review
of administrative construction of statute.
OPINION
Per Curiam:
[Headnote 1]
The Nevada Employment Security Department (NESD) investigated the employment
status of timeshare sales agents, and decided that such agents were employees for purposes
of the unemployment compensation law.
104 Nev. 527, 528 (1988) Nevada Emp. Sec. Dep't v. Capri Resorts
decided that such agents were employees for purposes of the unemployment compensation
law. Timeshare sales agents sell the right to use a certain property for a certain period of time.
NRS 119A.130. Respondent, a developer which pays commissions to timeshare sales agents,
appealed the decision to a referee and the Board of Review. The decision of the NESD was
upheld on each appeal. The district court, however, reviewed the applicable law and
concluded that timeshare sales agents were not employees for the purposes of unemployment
compensation. We agree with the district court that the NESD took too narrow a view of the
law in making its decision. Upon our review of the applicable statutes, we conclude that a
timeshare sales agent fits within the statutory exemption created for a licensed real estate
salesperson. NRS 612.133.
1
Therefore, the developer is not liable for the payment of
unemployment compensation taxes.
[Headnote 2]
A district court owes deference to an administrative decision, but may properly undertake
an independent review of the administrative construction of a statute. American Int'l
Vacations v. McBride, 99 Nev. 324, 661 P.2d 1301 (1983). The Nevada legislature has
enacted law which heavily regulates and controls the activities of timeshare sales agents.
First, the legislature defined timeshares as real property interests. NRS 119A.170(4). Next,
the legislature delegated regulatory authority over timeshare sales and sales agents to the
Nevada Real Estate Division. NRS 119A.190. Developers cannot sell their own shares, and
must hire a project broker to oversee the sales agents. NRS 119A.270(4). The sales agents are
licensed by the Real Estate Division, and are subject to disciplinary actions by the
administrator. NRS 119A.210, 119A.230. The sales agent must apply for the reissuance of his
license whenever he begins to work for a new broker, or whenever he changes his sales
location, even if he continues to work for the same broker. NRS 119A.220(4). All
advertisements and offerings of timeshares must be approved by the Division. NRS
119A.370. We conclude that a fair reading of Chapter 119A reveals legislative intent to place
timeshare sales agents squarely within the authority of the Real Estate Division, with all of
the corresponding regulatory obligations.
The Real Estate Division has promulgated extensive regulations concerning timeshare
sales agents in accordance with its statutory duty.
____________________

1
612.133 Employment: Service by licensed real estate salesman or broker excluded. Employment shall
not include services performed by a licensed real estate salesman or licensed real estate broker who is employed
as a salesman or associate broker by another licensed real estate broker, whether such services are performed for
such employer or for a third person, if such services are performed for remuneration solely by way of
commission.
104 Nev. 527, 529 (1988) Nevada Emp. Sec. Dep't v. Capri Resorts
statutory duty. See Nev. Admin. Code Ch. 119A. Timeshare sales agents must meet the
educational requirements set by the Division. NAC 119A.375. Their activities are closely
supervised by the project broker, who is also licensed by the Division. NAC 119A.240,
119A.265(2). Each project office is supervised by a licensed real estate broker, who is
responsible for reporting to the Division any circumstances surrounding the discharge of a
sales agent. NAC 119A.100, 119A.115. The project brokers are responsible for informing the
sales agents of the regulatory requirements of Chapter 119A, and any necessary disciplinary
measures are taken by the Real Estate Division against the brokers and sales agents. NAC
119A.245, 119A.290.
In our opinion, the regulatory structure created by the legislature and the Real Estate
Division indicates that timeshare sales agents should be treated the same as other licensed
real estate salespersons for purposes of unemployment compensation law. Logic and
consistency of the law require such a result. Timeshare sales agents work under virtually the
same conditions as real estate brokers. Their hours are not controlled, and they are
compensated solely by means of commissions on sales. Their activities are controlled in large
part by a regulatory authority, and not the particular developer for whom they are selling
timeshares. They are therefore not employees as contemplated by the unemployment
compensation statutes. This view is shared by the Internal Revenue Service and several other
states. See 26 U.S.C. 3508; Grubb & Ellis Co. v. Spengler, 143 Cal.App. 3d 890 (1983);
Property Holding & Dev., Inc. v. Employment Sec. Dept., 549 P.2d 58 (Wash.App. 1976);
see also Anthony Inv. Co. v. Ariz., etc., 644 P.2d 912 (Ariz.App. 1982) (securities salesman
paid only by commission not subject to unemployment taxes).
We conclude that the activities of timeshare sales agents are clearly analogous to those of
licensed real estate salespersons, and are thus exempt from the definition of employment.
NRS 612.133. We therefore affirm the decision of the district court.
____________
104 Nev. 530, 530 (1988) Hardison v. State
RICHARD HARDISON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18538
October 24, 1988 763 P.2d 52
Appeal from judgment of conviction of first degree murder with use of a deadly weapon,
and from sentence of death. Eighth Judicial District Court, Clark County; Robert E. Rose,
Judge.
Defendant was convicted in the district court of first degree murder and sentenced to
death, and he appealed. The Supreme Court held that: (a) the error, if any, in admitting
evidence that may have permitted the jury to infer that the defendant had a prior criminal
record was harmless and did not warrant a mistrial; (2) prior inconsistent statements given by
a witness were admissible; (3) the defendant was not entitled to make an unsworn statement
to the sentencing court during the penalty phase of the trial; and (4) a prior conviction for a
gross misdemeanor was admissible in the penalty phase as evidence of the defendant's
character.
Affirmed.
Beury & Schubel, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, Ronald C. Bloxham, Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Error, if any, in admitting testimony that police officer knew defendant's street nickname was harmless
and, thus, did not warrant mistrial, even though defendant claimed that testimony was improper reference
to defendant's criminal record.
2. Criminal Law.
Any error in comment by witness indicating that he had met defendant in the joint was harmless beyond
reasonable doubt and did not warrant mistrial; information was not sought by State, but was simply
response to question about how long witness had known defendant, jury had been instructed to disregard
statement, no mention was made about number or nature of defendant's prior offense or offenses, and there
was overwhelming evidence of defendant's guilt.
3. Criminal Law.
Preliminary hearing testimony by witness and his statement to police were admissible, over hearsay
objection, as prior statements inconsistent with trial testimony. NRS 51.035, subd. 2(a).
4. Statutes.
Specific statute dealing with procedure for determining appropriate punishment in first degree murder
case, rather than general statute permitting defendant to make unsworn statement to jury in his own behalf,
governed defendant's entitlement to address sentencing court in capital murder trial. NRS 175.552,
176.015, subd. 2.
104 Nev. 530, 531 (1988) Hardison v. State
5. Criminal Law.
Once jury had assessed penalty of death for first degree murder, judge had no discretion and was required
to enter judgment according to jury's verdict and, thus, permitting defendant to make unsworn statement on
his own behalf at formal imposition of sentence would have served no function. NRS 175.552,
176.015, subd. 2.
6. Homicide.
Defendant's prior conviction for conspiracy to commit grand larceny from person was admissible as
evidence of defendant's character in penalty phase of capital murder trial, even though crime was gross
misdemeanor, not felony, NRS 175.552, 200.033.
OPINION
Per Curiam:
Facts
Around 7:30 p.m. on August 21, 1986, at least three individualsPete Johnson, his
girlfriend Althea Johnson, and Willie Sweetpea Lockettwere gathered on Madison Street
in Las Vegas. As Althea was talking to Pete, a man carrying a gun approached. Althea
recognized the man as Noochie, appellant Richard Lee Hardison, whom she had known
most of her life. As Hardison approached the group, he commenced shooting and running
after Pete. One of the shots penetrated the wall of an apartment and grazed its occupant, O. C.
McMurray. Charles Boyd, who was on the porch of his house, watched Hardison pursue and
shoot Johnson in the back; and then, after the victim importuned Hardison not to shoot him
again, witnessed Hardison shoot Pete a second time in the back, Pete died within minutes.
Immediately after the shooting, Willie Lockett told Officer Thompson that he saw Noochie
Hardison shoot Pete as Pete was trying to run away. Lockett also claimed that he had almost
been hit by an errant bullet. According to Gladys Johnson (the victim's mother), Lockett
rushed into her home without knocking and told her that Pete had been shot by Noochie
Hardison.
After listening to the witnesses and knowing personally that Hardison's street nickname
was Noochie, Officer Thompson relayed a description of Hardison to secure his arrest.
Later that evening, Hardison called the police from a pay phone and surrendered; Hardison
was arrested for the murder of Pete Johnson.
At Hardison's preliminary hearing, aside from the testimony of the doctor who performed
the autopsy on Pete Johnson, the Sate strictly relied on the testimony of Lockett. At trial
however, Lockett unsuccessfully attempted to invoke the Fifth Amendment against
self-incrimination. Subsequently, Lockett denied ever having been present at the shooting and
claimed that he had fabricated the story he told to the police and at the preliminary hearing.
104 Nev. 530, 532 (1988) Hardison v. State
hearing. Lockett also denied telling Gladys Johnson that her son had been shot and that
Hardison was the shooter. When Lockett was asked how long he had known Hardison,
Lockett replied, Not too long. I met him in the joint. Lockett admitted that he was in prison
at the time of trial and that his testimony was placing his life in jeopardy.
The jury returned with a verdict of first degree murder with use of a deadly weapon. In a
separate penalty hearing, finding two aggravating circumstances and no mitigating
circumstances, the jury imposed the sentence of death.
On appeal, Hardison contends that the trial court erred in (1) denying two motions for
mistrial based on alleged introductions of prior bad acts of Hardison, (2) admitting Willie
Lockett's preliminary hearing testimony and Lockett's statement to the police, (3) failing to
give Hardison an opportunity to address the sentencing court, and (4) allowing the jury,
during the penalty phase, to consider to gross misdemeanor.
Discussion
The Motions for Mistrial Alleging
Introduction of Prior Bad Acts
[Headnote 1]
During the course of the trial, Hardison made two motions for mistrial alleging that the
State had improperly introduced evidence of prior bad acts. In Manning v. Warden, 99 Nev.
82, 659 P.2d 847 (1983), we noted that the test for determining a reference to criminal
history is whether a juror could reasonably infer from the facts presented that the accused
had engaged in prior criminal activity.' 99 Nev. at 86, 659 P.2d at 850. One of Hardison's
motions for mistrial was based on Officer Thompson's statement that he knew that Hardison's
street nickname was Noochie. Hardison argues that Thompson's statement was an improper
reference to Hardison's criminal record. Although the officer's testimony concerning
Hardison's street name was inappropriate and perhaps suggestive of a criminal background,
the trial judge correctly denied the motion for mistrial because any error in admitting the
testimony was manifestly harmless in the face of overwhelming evidence of Hardison's guilt.
[Headnote 2]
Hardison's other motion for mistrial concerned Willie Lockett's statement that he had met
Hardison in the joint. This statement was not proper since it probably suggested to the jury
that Hardison had a criminal record. However, a number of factors lead us to conclude that
the motion for mistrial was properly denied. First, this information was not sought by the
State but was simply Lockett's response to the question, How long have you known the
defendant?"
104 Nev. 530, 533 (1988) Hardison v. State
long have you known the defendant? Second, upon defense counsel's objection to Lockett's
reply, the judge immediately instructed the jury, Ladies and Gentlemen, the indication as to
where this witness met Mr. Hardison is not relevant or material and should be disregarded by
you, and I'm instructing you to disregard it and give it no weight whatsoever. Third, any
prejudicial effect was minimized by the fact that there was no mention as to whether there
had been one or more previous offenses or what the nature of the offense or offenses were.
Fourth, in light of the overwhelming evidence of Hardison's guilt,
1
we are convinced that
Lockett's improper comment was harmless beyond a reasonable doubt. See, e.g., Manning v.
Warden, supra, 99 Nev. at 87, 659 P.2d at 850.
Admitting Lockett's Preliminary Hearing Testimony
[Headnote 3]
Hardison suggests the trial court erred in admitting Lockett's preliminary hearing
testimony and Lockett's statement to the police. We disagree.
NRS 51.035 in pertinent part provides:
Hearsay means a statement offered in evidence to prove the truth of the matter
asserted unless: . . .
(2) The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is:
(a) Inconsistent with his testimony;
Both Lockett's statement to police and his preliminary hearing testimony unequivocally
indicated that Lockett was an eyewitness to the murder and that he identified Hardison as the
killer. However, at trial, Lockett testified that he was not present at the time of the murder and
did not know who killed Pete Johnson. Lockett's trial testimony was in direct conflict with the
two previous statements. Accordingly, the statements were admissible as evidence pursuant
to NRS 51.035(2)(a). See, e.g., Levi v. State, 95 Nev. 746, 749, 602 P.2d 189, 190 (1979)
(where testimony of two witnesses at the preliminary hearing was inconsistent with their
testimony at trial, preliminary hearing testimony was admissible for all purposes pursuant to
NRS 51.035).
Opportunity to Address the Sentencing Court
[Headnote 4]
Hardison asserts that he was denied an opportunity to address the sentencing court.
____________________

1
There were at least three eyewitnesses to Hardison's killing of Pete Johnson.
104 Nev. 530, 534 (1988) Hardison v. State
the sentencing court. Specifically, relying on NRS 176.015(2),
2
he claims that the trial court
had an affirmative duty to advise him of the possibility of giving an unsworn statement to the
jury. However, NRS 176.015(2) is inapplicable to the instant case because a more specific
statute, NRS 175.552, deals with the procedure for determining the appropriate punishment in
a first degree murder case. See La Pena v. State, 96 Nev. 43, 47, 604 P.2d 811, 813 (1980) (a
specific statute dealing with the subject at issue prevails over a general statute). That is, once
the jury found Hardison guilty of first degree murder, the trial court had no choice but to hold
a separate penalty phase wherein, pursuant to NRS 175.552, evidence may be presented
concerning aggravating and mitigating circumstances relative to the offense, defendant or
victim and on any other matter which the court deems relevant to sentence. . . . Under the
procedures provided by NRS 175.552, Hardison was given every opportunity to present any
information in mitigation of his punishment. Indeed, our review of the record persuades us
that Hardison was afforded all the protections to which NRS 175.552 entitles him.
3

[Headnote 5]
Relying again on NRS 176.015(2), Hardison additionally asserts that he should have been
given opportunity to address the court at the time the sentence of death was formally
imposed. However, after a jury has assessed a penalty of death, the judge has no discretion
and must enter judgment according to the verdict of the jury.
____________________

2
NRS 176.015(2) provides:
Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the
defendant and shall address the defendant personally and ask him if he wishes to make a statement in his
own behalf and to present any information in mitigation of his punishment.

3
Analogous to the instant case is Bowen v. State, 715 P.2d 1093 (Okla.Crim.App. 1984). In addressing an
argument virtually identical to Hardison'sthat the court erred by not instructing the defendant that he had the
right to personally argue the issue of the penalty to the jurythe Bowen court reflected:
[H]e [defendant] cites no authority for this contention other than 21 O.S. 1981, sec. 701.10 . . .
[which] provides in pertinent part that, the state and the defendant or his counsel shall be permitted to
present argument for or against sentence of death. Both the appellant and his counsel were present in the
courtroom when the judge gave the appellant's attorney an opportunity to make an argument during the
penalty stage of the trial. Throughout the entire trial the appellant had elected to be represented by his
privately retained attorney. It is clear that the appellant was aware of the opportunity given his attorney to
argue on his behalf. In view of these circumstances, the trial court did not err by not instructing the
appellant that he had the right to personally argue the issue of the penalty to the jury.
715 P.2d at 1103.
104 Nev. 530, 535 (1988) Hardison v. State
verdict of the jury. See NRS 175.552; NRS 175.554; NRS 176.445. Thus, a statement by
Hardison in his own behalf would serve no function. We reemphasize that, because the
specific statutes dealing with the imposition of punishment in a first degree murder case
override the general statutes dealing with punishment, the requirement of NRS 175.015 is not
applicable to hearings where the death penalty is formally imposed.
Allowing the Jury to Consider a Gross Misdemeanor
[Headnote 6]
During the penalty phase, the State introduced evidence that Hardison had been convicted
of conspiracy to commit grand larceny from the persona gross misdemeanor. Hardison
claims this was error mandating a new penalty phase. Hardison is mistaken.
Hardison bases his argument on the assumption that only felonies are admissible in the
penalty phase of a first degree murder. While it is true that the conviction could not have been
used as an aggravating circumstance because it did not fit into any of the enumerated
aggravating circumstances listed in NRS 200.033, the conviction was properly admitted
under NRS 175.552. Indeed, in dealing with a similar argument, we noted:
While it is true that the items objected to by appellant are not aggravating
circumstances [outlined in NRS 200.033], appellant fails to recognize the import of
NRS 175.552 which provides that during a penalty hearing evidence may be presented
concerning aggravating and mitigating circumstances relative to the offense, defendant
or victim and on any other matter which the court deems relevant to sentence, whether
or not the evidence is ordinarily admissible. (Emphasis supplied.) This statue clearly
indicates and we so hold that NRS 175.552 is not limited to those nine aggravating
circumstances outlined in NRS 200.033. Furthermore, the United States Supreme Court
in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976),
ruled that the relevant factors to be considered by a jury in imposing a penalty for a
capital crime are the character and record of the individual offender and the
circumstances of the particular offense. Therefore we conclude that the district court
did not err in admitting evidence of the appellant's character even though such evidence
did not consist of aggravating circumstances.
Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983). Thus, in the instant case the State
is correct in claiming that Hardison's gross misdemeanor conviction was properly
introduced to show Hardison's character.
104 Nev. 530, 536 (1988) Hardison v. State
Hardison's gross misdemeanor conviction was properly introduced to show Hardison's
character.
Accordingly, having reviewed the issues raised by Hardison and finding them without
merit, we affirm the judgment of the district court.
____________
104 Nev. 536, 536 (1988) SIIS v. Wrenn
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. THOMAS W. WRENN, Respondent.
No. 18763
October 24, 1988 762 P.2d 884
Appeal from order awarding interest and attorney's fees. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Claimant and State Industrial Insurance System petitioned for review of decision awarding
claimant interest on award of benefits and denying award of attorney fees. The district court
awarded interest and attorney fees to claimant. System appealed. The Supreme Court held
that: (1) delay in payment of worker's compensation after System's decision that eye injury
was outcome of prior injury and was to be compensated at rate in effect at time of prior injury
did not warrant award of interest as sanction, and (2) claimant was not entitled to attorney
fees for cost of private attorney during appeal.
Reversed.
[Rehearing denied December 6, 1988]
Pamela Bugge, General Counsel, Carson City; Douglas T. Quon, Associate General
Counsel, Las Vegas, for Appellant.
R. Paul Sorenson, Las Vegas, for Respondent.
1. Workers' Compensation.
Delay in payment of worker's compensation after State Industrial Insurance System's decision that eye
injury was outcome of prior injury and was to be compensated at rate in effect at time of prior injury was
not due to arbitrary conduct or bad faith and did not warrant award of interest on delayed payment as
sanction. NRS 17.130, 99.040, 616.010 et seq.
2. Workers' Compensation.
Date of injury, rather than date of payment, is date of effective rate for worker's compensation. NRS
616.625.
104 Nev. 536, 537 (1988) SIIS v. Wrenn
3. Workers' Compensation.
Worker's compensation claimant, whose appointed counsel decided not to appeal adverse agency
decision, was not entitled to attorney fees for cost of private attorney during appeal, even though claimant
was successful. NRS 616.2535, 616.2537, 616.2537, subd. 2(b).
OPINION
Per Curiam:
Respondent Thomas Wrenn suffered an industrial injury to his left eye in 1961, and an
additional injury to the eye in 1978, resulting in total disability of the eye. Appellant SIIS
(then NIC), classified this injury as an outgrowth of the initial injury and allowed Wrenn
compensation for complete loss of the eye based on the rate in effect in 1961, rather than in
1978. Wrenn appealed that determination, and the State Industrial Claimants' Attorney was
appointed to represent him. See NRS 616.2535 and 616.2537. After the appeals officer
affirmed SIIS's decision, the State Industrial Claimants' Attorney declined any further
representation of Wrenn because, in his opinion, no appeal to the district court was merited.
See NRS 616.2537(2)(b). Wrenn then retained private counsel and pursued a successful
petition for judicial review in the district court. This court subsequently affirmed the district
court's decision that the 1978 injury to Wrenn's eye was separate and unrelated to the 1961
injury and should be compensated at the rate in effect in 1978. See SIIS v. Wrenn, Order
Dismissing Appeal, Supreme Court Docket No. 14997 (filed March 11, 1985).
Following this court's decision, Wrenn filed a claim for, among other things, attorney's
fees incurred in pursuing the appeals and interest on the delayed payment of benefits. Wrenn's
claim was denied in full. On appeal, the appeals officer determined that Wrenn was entitled to
interest on the award benefits, but denied him attorney's fees. Both Wrenn and the SIIS
petitioned the district court for review of this decision. The district court consolidated the
actions, and, concluding that Wrenn was entitled to both interest and attorney's fees, affirmed
the award of interest and reversed the denial of attorney's fees. SIIS now appeals the district
court's order. For the reasons expressed below, we conclude that Wrenn is not entitled to
recover either interest or attorney's fees.
[Headnotes 1, 2]
SIIS first contends that the district court erroneously awarded Wrenn interest on the
delayed payment of his worker's compensation benefits. Specifically, SIIS argues that the
Nevada Industrial Insurance Act (NRS Ch. 616) includes no provision for such an award,
and that neither NRS 99.040 nor NRS 17.130 provide authority for such an award.
104 Nev. 536, 538 (1988) SIIS v. Wrenn
award, and that neither NRS 99.040 nor NRS 17.130 provide authority for such an award.
This court recently decided the identical issue in Weaver v. SIIS, 104 Nev. 305, 756 P.2d
1195 (1988). Although Wrenn implicitly concedes that Weaver bars the recovery of interest
on the delayed payment of compensation benefits, he urges this court to follow Imperial
Palace v. Dawson, 102 Nev. 88, 715 P.2d 1318 (1986), and award him interest as a sanction
against the SIIS for the delay in payment. Because the record on appeal does not reveal that
the delay in payment of worker's compensation benefits was due to any arbitrary conduct or
bad faith practice of the SIIS, we conclude that sanctions are not warranted. We also reject
Wrenn's alternative argument that if interest is not awarded, the SIIS should compensate him
for his injury at the rate in effect at the time of payment to eliminate the inequities resulting
from delayed payment. NRS 616.625 states that the amount of compensation must be
determined as of the date of injury, unless otherwise provided by specific statute. No statute
provides for compensation at the rate Wrenn suggests. Therefore, NRS 616.625 establishes
compensation as of the date of injury. i.e., 1978.
[Headnote 3]
SIIS next contends that the district court erroneously granted Wrenn attorney's fees
because the Nevada Industrial Insurance Act contains no express provision for the allowance
of attorney's fees, with two exceptions inapplicable to this case. See NRS 616.544 and
616.647. SIIS also argues that, pursuant to State Indus. Ins. System v. Snapp, 100 Nev. 290,
680 P.2d 590 (1984), attorney's fees are not recoverable under NRS 18.010 in worker's
compensation cases. Wrenn, on the other hand, argues that he did not voluntarily retain
private counsel to represent him, but was deprived of representation under NRS 616.2535 and
616.2537, and that Snapp therefore is inapplicable. Wrenn contends that when the State
Industrial Claimants' Attorney is appointed to represent a claimant, and then declines to
represent the claimant on appeal from an adverse agency decision, the claimant is entitled to
attorney's fees if he successfully appeals with the assistance of privately retained counsel.
Because the State Industrial Claimants' Attorney erroneously determined that no appeal of the
agency decision to compensate Wrenn at the 1961 rate was merited, Wrenn argues that he is
entitled to legal representation without charge under the Nevada Industrial Insurance Act.
NRS 616.2535 and NRS 616.2537 do not mandate the appointment of the State Industrial
Claimants' Attorney to represent all claimants free of charge in proceedings before either the
appeals officer or the district court. Under NRS 616.2535, the appeals officer must appoint
the State Industrial Claimants' Attorney to represent a claimant when the "appeals officer
finds that the claimant would be better served by legal representation in his case."
104 Nev. 536, 539 (1988) SIIS v. Wrenn
represent a claimant when the appeals officer finds that the claimant would be better served
by legal representation in his case. Further, once appointed, the State Industrial Claimants'
Attorney is obligated to represent the claimant at the district court level only if, in the
opinion of the state industrial claimants' attorney, the appeal is merited. See NRS
616.2537(2)(b). Further, the legislature has not expressly authorized an award of attorney's
fees in worker's compensation cases except in limited circumstances not applicable here. We
have repeatedly refused to imply provisions not expressly included in the legislative scheme.
See, e.g., Weaver, 104 Nev. at 305, 756 P.2d at 1195; Goldstine v. Jensen Pre-Cast, 102 Nev.
630, 729 P.2d 1355 (1986). As in Snapp, we decline to allow a claimant recovery of
attorney's fees in a worker's compensation case absent express statutory authorization.
In light of our disposition of this appeal, we need not consider appellant's remaining
contention. We reverse the order of the district court.
1

____________________

1
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 539, 539 (1988) Sheriff v. Lang
SHERIFF, HUMBOLDT COUNTY, NEVADA, Appellant,
v. REGINALD DUANE LANG, Respondent.
No. 18658
October 24, 1988 763 P.2d 56
Appeal from order granting a pretrial petition for a writ of habeas corpus. Sixth Judicial
District Court, Humboldt County; Llewellyn A. Young, Judge.
Defendant was charged with sale of methylamine, importation of methylamine, conspiracy
to import methylamine, possession of methamphetamine, and trafficking in
methamphetamine, and defendant filed pretrial petition for writ of habeas corpus regarding
importation of methylamine and conspiracy to import methylamine charges. The district court
granted habeas petition as to those two charges, and sheriff appealed. The Supreme Court
held that: (1) minimum weight requirements in controlled substance statutes referred to
aggregate weight of entire mixture rather than weight of controlled substance that was
contained in mixture, and (2) probable cause existed to believe that defendant engaged in
conspiracy to import controlled substances into state.
Reversed and Remanded.
104 Nev. 539, 540 (1988) Sheriff v. Lang
Brian McKay, Attorney General, Carson City; Jack T. Bullock, District Attorney,
Humboldt County, for Appellant.
Terri Steik Roeser, State Public Defender, and Jeffrey M. Evans, Deputy, Carson City, for
Respondent.
1. Drugs and Narcotics.
For purpose of statute providing that any person knowingly or intentionally selling, manufacturing,
delivering, or bringing into state, or knowingly or intentionally possessing, controlled substance or mixture
containing controlled substance shall be punished if quantity involved was 28 grams or more, phrase 28
grams or more referred to aggregate weight of entire mixture rather than weight of controlled substance
that was contained in mixture. NRS 453.3395.
2. Criminal Law.
Probable cause existed to believe that accused engaged in conspiracy to import controlled substances into
state where it was reasonable to infer that coconspirators had previously agreed to meet in state to do their
business as they entered state from different states, met in state, and consummated transaction involving
controlled substances which one coconspirator brought into state from another state; thus, defendant was
properly bound over for trial.
OPINION
Per Curiam:
Felony complaints were filed in the Justice's Court of Union Township, Humboldt County,
charging respondent (Lang) with one count each of possession for sale of a schedule III
controlled substance (methylamine), importation of a schedule III controlled substance
(methylamine), conspiracy to import a schedule III controlled substance (methylamine),
possession of a schedule II controlled substance (methamphetamine), and trafficking in a
schedule II controlled substance (methamphetamine). A preliminary hearing was
subsequently held, and the following evidence was adduced.
Mark Williams, a criminal investigator employed by the Nevada Division of Investigation,
testified that on June 13, 1986, his supervisor directed him to go to Winnemucca because the
department had received information regarding a car transporting methylamine from Idaho to
Nevada. When Williams arrived in Winnemucca, he received a description of the suspect
vehicle. Williams observed the vehicle and followed it. He watched the vehicle stop at a gas
station and photographed Lang as he refuelled the car. He then observed Lang park his car at
a nearby motel. Williams saw Lang carry a cardboard box from his car into his room.
Williams and other agents placed Lang's room under surveillance for a period of four days.
To facilitate the surveillance, the agents eventually obtained a room that was next to
Lang's room.
104 Nev. 539, 541 (1988) Sheriff v. Lang
surveillance, the agents eventually obtained a room that was next to Lang's room.
On the third day of the surveillance, Williams observed a vehicle with California license
plates pull into the motel's parking lot. Two men exited the vehicle and entered Lang's motel
room. The two men were identified as Lang's co-defendant (Burns), and Burns' son. The
agents then observed Burns' son retrieve a briefcase, two rifles, some clothes and a handgun
from the vehicle. Burns' son later left the room to buy some gasoline.
While Burns's son was gone, Lang and Burns had a conversation that Williams and
another agent overheard by placing their ears against the door that connected the two rooms.
Williams overheard Burns tell Lang that federal agents were following people who bought
certain chemicals. The two also discussed the procedure for cooking methamphetamine.
Finally, Lang told Burns that Lang could distribute methamphetamine in Idaho. Burns and his
son later obtained a room in the motel and spent the night there.
The next morning, Burns' son backed the vehicle into a parking space outside Lang's room
and began loading cardboard boxes from Lang's room into the vehicle. It was later determined
that the boxes contained methylamine. At that time, Williams and the other agents arrested
Lang, Burns and Burns' son. Williams and the other agents then searched Lang's room
pursuant to a previously issued search warrant. They discovered three briefcases, several
guns, a burned methylamine label in the toilet, and another methylamine label in a trash can.
Two packages containing a total of 100.47 grams of a mixture containing methamphetamine
were recovered from the briefcases. The mixture was only 26 percent pure. Therefore, the
maximum amount of methamphetamine that could be contained in the mixture was 26.47
grams. At the conclusion of the preliminary hearing, the justice's court determined that
probable cause existed to bind Lang over for trial on the charges recited above.
On June 8, 1987, Lang filed in the district court a pretrial petition for a writ of habeas
corpus alleging, among other things, that he did not possess enough methamphetamine to
constitute the offense of trafficking, and that insufficient evidence was adduced at the
preliminary hearing to hold him for trial on the conspiracy charge. After a hearing, the district
court granted Lang's habeas petition insofar as it challenged the trafficking charge and the
conspiracy charge. This appeal followed. Because we conclude that the district court erred
when it dismissed the trafficking and conspiracy charges, we reverse the order of the district
court.
[Headnote 1]
NRS 453.3395 provides in pertinent part: Except as authorized by the provisions of NRS
453.011 to 453.552, inclusive, any person who knowingly or intentionally sells,
manufactures, delivers or brings into this state or who is knowingly or intentionally in
actual or constructive possession of any controlled substance which is listed in schedule
II or any mixture which contains any such controlled substance shall be punished, if the
quantity involved:
104 Nev. 539, 542 (1988) Sheriff v. Lang
Except as authorized by the provisions of NRS 453.011 to 453.552, inclusive, any
person who knowingly or intentionally sells, manufactures, delivers or brings into this
state or who is knowingly or intentionally in actual or constructive possession of any
controlled substance which is listed in schedule II or any mixture which contains any
such controlled substance shall be punished, if the quantity involved:
1. Is 28 grams or more, but less than 200 grams, by imprisonment in the state prison
for not less than 3 years nor more than 20 years and by a fine of not less than $50,000.
(Emphasis added.) In its order granting Lang's habeas petition below, the district court first
held that the language of NRS 453.3395, supra, was unclear. Specifically, the court stated
that it could not determine whether the phrase 28 grams or more referred to the total weight
of the mixture containing a controlled substance or to the weight of the controlled substance
that is contained in the mixture. The district court found that NRS 453.3395 is ambiguous,
and correctly noted that ambiguous penal statutes must be construed liberally in favor of an
accused. See In re Laiolo, 83 Nev. 186, 188, 426 P.2d 726, 727 (1967). Thus, the district
court construed the phrase 28 grams or more to refer to the actual weight of the controlled
substance that is contained in a mixture. Because it is undisputed that the mixture found in
Lang's room contained only 26.47 grams of methamphetamine, the district court held that
insufficient evidence existed to hold Lang for trial on the trafficking charge. See NRS
453.3395(1), supra.
The state contends that the district court erred by interpreting NRS 453.3395 in such a
restrictive manner. We agree. Where the intention of the legislature is clear, it is the duty of
the court to give effect to such intention and to construe the language of the statute to
effectuate, rather than to nullify, its manifest purpose. Sheriff v. Luqman, 101 Nev. 149,
155, 697 P.2d 107, 111 (1985).
The legislature enacted NRS 453.3395 to deter large-scale distribution of controlled
substances, thus decreasing the number of persons potentially harmed by drug use. See, e.g.,
State v. Muncy, 339 S.E.2d 466, 471 (N.C.Ct.App. 1986) (stating the legislative intent behind
a similar statute). We note, however, that controlled substances are typically sold in a diluted
state. See United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2nd Cir. 1974). In cases
such as this, where the controlled substance has been cut, the substance is rendered more
harmful to society because the dilution increases the potential number of persons who will
partake of the proscribed controlled substance. See Muncy, 339 S.E.2d at 471. The increased
potential for harm to society justifies the imposition of more severe penalties for the
possession of large amounts of a diluted controlled substance than for smaller amounts of
a pure controlled substance.
104 Nev. 539, 543 (1988) Sheriff v. Lang
to society justifies the imposition of more severe penalties for the possession of large
amounts of a diluted controlled substance than for smaller amounts of a pure controlled
substance. Further, the possession of large amounts of a diluted controlled substance indicates
an intent to engage in the large-scale distribution of controlled substances, the very conduct
that NRS 453.3395 is designed to deter. In accordance with the legislative policy underlying
NRS 453.3395, we conclude that the phrase 28 grams or more refers to the aggregate
weight of the entire mixture rather than the weight of the controlled substance that is
contained in the mixture. Thus, in light of the clear legislative purpose underlying NRS
453.3395, we conclude that the district court erred in determining that the statute is
ambiguous and construing that statute in respondent's favor. See, e.g., Liparota v. United
States, 471 U.S. 419, 427 (1985) (rule of lenity should not be applied where it would conflict
with the express or implied intent of the legislature). In reaching this result, we note that other
courts interpreting similar statutes have reached the same conclusion. See Daneff, supra;
State v. Yu, 400 So.2d 762 (Fla. 1981); Lavelle v. State, 297 S.E.2d 234 (Ga. 1982); State v.
Muncy, 339 S.E.2d 466 (N.C.Ct.App. 1986); State v. Tyndall, 284 S.E.2d 575 (N.C.Ct.App.
1981).
[Headnote 2]
The state next contends that the district court erred when it determined that insufficient
evidence existed to bind Lang over for trial on the conspiracy charge. We agree. Direct
evidence is not required to establish a conspiracy, but circumstantial evidence may be relied
upon. This rule is sanctioned for the obvious reason that experience has demonstrated that as
a general proposition a conspiracy can only be established by circumstantial evidence.
Goldsmith v. Sheriff, 85 Nev. 295, 304, 454 P.2d 86, 92 (1969), (quoting People v. Massey,
312 P.2d 365, 382 (Cal.Ct.App. 1957)). The evidence adduced at the preliminary hearing
indicated that Lang and Burns entered Nevada from different states, met in Winnemucca, and
consummated a transaction involving controlled substances that Lang brought into Nevada
from Idaho. From these circumstances, and for the purpose of establishing probable cause to
hold Lang for trial, it is reasonable to infer that Lang and Burns had previously agreed to meet
in Nevada to do their business. Thus, we conclude that probable cause existed to believe that
Lang conspired with Burns to import controlled substances into Nevada. See Sheriff v.
Hodes, 96 Nev. 184, 606 P.2d 178 (1980) (finding of probable cause to support a criminal
charge may be based on slight, even marginal evidence because it does not involve a
determination of the guilt or innocence of an accused). Accordingly, we conclude that the
district court committed substantial error when it dismissed the conspiracy charge
against Lang.
104 Nev. 539, 544 (1988) Sheriff v. Lang
district court committed substantial error when it dismissed the conspiracy charge against
Lang. See Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981).
For the reasons expressed above, we reverse the order of the district court granting Lang's
pretrial petition for a writ of habeas corpus, and we remand this matter to the district court for
further proceedings consistent with the views expressed in this opinion.
1

____________________

1
The Honorable Cliff Young, Justice, voluntarily disqualified himself from participating in the decision of
the appeal.
____________
104 Nev. 544, 544 (1988) Cariaga v. District Court
PETE CARIAGA, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, and the HONORABLE JAMES A. BRENNAN, DISTRICT JUDGE,
Respondent, and HARRIET KARATZ, Real Party in Interest.
No. 18682
October 24, 1988 762 P.2d 886
Original petition for a writ of mandamus.
Petition for writ of mandamus was filed after trial court denied motion to quash service of
process. The Supreme Court held that personal jurisdiction could be exercised over
non-resident defendant who was served with process while physically present in Nevada,
though based on slip and fall accident at defendant's residence in California, without necessity
of showing minimum contacts.
Writ denied.
Beckley, Singleton, DeLanoy, Jemison & List, and C. Eric Funston and Daniel F.
Polsenberg, Las Vegas, for Petitioner.
Thomas M. Burns, Las Vegas, for Respondent.
1. Mandamus.
Extraordinary relief is available to challenge an order denying motion to quash service of process.
NRAP 21(b).
2. Courts.
Personal jurisdiction may be asserted over a non-resident individual who is served with process while
present within the forum state, and showing of minimum contact is not necessary. NRS 14.065;
U.S.C.A.Const. Amend. 14.
3. Courts.
Personal jurisdiction could be exercised over non-resident defendant with respect to slip and fall accident
suffered by Nevada resident at defendant's home in California, despite contention that all
the evidence and witnesses were located in California, where defendant was served
with process while he was physically present in Nevada visiting friends, despite claim
of lack of sufficient "minimum contacts" with Nevada; any hardships arising out of
exercise of personal jurisdiction could be avoided through recourse to doctrine of
forum non conveniens.
104 Nev. 544, 545 (1988) Cariaga v. District Court
defendant's home in California, despite contention that all the evidence and witnesses were located in
California, where defendant was served with process while he was physically present in Nevada visiting
friends, despite claim of lack of sufficient minimum contacts with Nevada; any hardships arising out of
exercise of personal jurisdiction could be avoided through recourse to doctrine of forum non conveniens.
NRS 13.050, subd. 2(c).
OPINION
Per Curiam:
On September 4, 1987, real party in interest Harriet Karatz filed in the district court a
complaint against petitioner Pete Cariaga seeking recovery for personal injuries sustained by
Karatz in a slip and fall accident at Cariaga's home in California. According to the complaint,
Cariaga is a resident of San Diego, California, and Karatz is a resident of Las Vegas.
On September 6, 1987, Karatz served Cariaga with a copy of the summons and complaint
while Cariaga was in Las Vegas visiting friends. Thereafter, on November 3, 1987, Cariaga
moved the district court to quash service of process, contending that he lacked sufficient
minimum contacts with the state of Nevada to justify the exercise of personal jurisdiction
over him by the Nevada courts. Specifically, Cariaga argued that Nevada courts could not
exercise personal jurisdiction over him based solely on the fact that he was served with
process in this state.
[Headnote 1]
In opposition to the motion, Karatz argued that a minimum contacts analysis applies
only to the exercise of long-arm jurisdiction. Because Cariaga was served with process while
in this state, Karatz argued that a showing of minimum contacts was unnecessary and that the
district court could exercise personal jurisdiction over Cariaga based on his presence within
Nevada. The district court denied Cariaga's motion to quash, and this proceeding followed.
Extraordinary relief is available to challenge an order denying a motion to quash service of
process. See Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982).
In his petition, Cariaga argues, as he did below, that he lacks sufficient contacts with the
state of Nevada to justify the exercise of personal jurisdiction over him by the Nevada courts.
Cariaga asserts that by coming to Las Vegas as a tourist, he did not purposely avail himself of
the privilege of conducting activities in the state of Nevada. Further, Cariaga observes that
Karatz's claim against him did not arise out of or result from Cariaga's visit to the state of
Nevada. See Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971). Finally,
Cariaga contends that the assertion of jurisdiction over him by the Nevada courts is
unreasonable in this case.
104 Nev. 544, 546 (1988) Cariaga v. District Court
courts is unreasonable in this case. Specifically, Cariaga asserts that Karatz's cause of action
against him arose in California and that all of the evidence and witnesses are located in
California. Under these circumstances, Cariaga argues that the district court erred when,
based on Cariaga's single visit to Nevada, it refused to quash service of process against him.
We disagree.
[Headnote 2]
It is well-settled that personal jurisdiction may be asserted over an individual who is
served with process while present within the forum state. See Pennoyer v. Neff, 95 U.S. 714
(1878); NRCP 4(f). If a non-resident defendant cannot be served with process while in the
forum state, jurisdiction may be obtained through the use of our long-arm statute, NRS
14.065, provided that the defendant has sufficient minimum contacts with Nevada so that
the exercise of personal jurisdiction over him will not offend the constitutional guarantee of
due process. See, e.g., Internat. Shoe Co. v. Washington, 326 U.S. 310 (1945); Levinson v.
District Court, 103 Nev. 404, 742 P.2d 1024 (1987). The doctrine of minimum contacts
evolved to extend the personal jurisdiction of state courts over non-resident defendants; it
was never intended to limit the jurisdiction of state courts over persons found within the
borders of the forum state. Compare Pennoyer v. Neff, 95 U.S. 714 (1878) (exercise of
personal jurisdiction upheld where non-resident defendant was personally served with process
while present within the forum state) with Internat. Shoe Co. v. Washington, 326 U.S. 310
(1945) (non-resident defendant's systematic and continuous business contacts with the forum
state justified the exercise of personal jurisdiction). Although the United States Supreme
Court stated in Shaffer v. Heitner, 433 U.S. 186, 212 (1977), that all assertions of state-court
jurisdiction must be evaluated according to the standards set forth in International Shoe and
its progeny, that court has never held that a showing of minimum contacts is necessary to
justify the exercise of personal jurisdiction when the defendant is personally served with
process while present within the forum state.
[Headnote 3]
Because Cariaga was served with process while he was physically present in Nevada, we
conclude that the district court properly denied Cariaga's motion to quash service of process.
In reaching this conclusion, we note that other courts addressing similar fact situations have
concluded that personal jurisdiction may be exercised over a non-resident defendant if the
defendant is served with process while he is physically present in the forum state. See
Amusement Equipment, Inc. v. Mordeldt, 779 F.2d 264 (5th Cir. 1985); Opert v. Schmid, 535
F.Supp. 591 {S.D.N.Y. 19S2); Aluminal Industries v. Newtown Commercial Assoc., S9
F.R.D. 326 {S.D.N.Y. 19S0); Hutto v. Plagens, 330 S.E.2d 341 {Ga. 19S5); Humphrey v.
Langford, 273 S.E.2d 22 {Ga.
104 Nev. 544, 547 (1988) Cariaga v. District Court
(S.D.N.Y. 1982); Aluminal Industries v. Newtown Commercial Assoc., 89 F.R.D. 326
(S.D.N.Y. 1980); Hutto v. Plagens, 330 S.E.2d 341 (Ga. 1985); Humphrey v. Langford, 273
S.E.2d 22 (Ga. 1980); In re Marriage of Pridemore, 497 N.E.2d 818 (Ill.App.Ct. 1986);
Lockert v. Breedlove, 361 S.E.2d 581 (N.C. 1987). Additionally, we note that any hardships
arising out of the exercise of personal jurisdiction over a non-resident defendant who is
served within the forum can be avoided through recourse to the doctrine of forum non
conveniens. See NRS 13.050(2)(c).
For the reasons set forth above, we deny Cariaga's petition for extraordinary relief. NRAP
21(b).
____________
104 Nev. 547, 547 (1988) Brackeen v. State
BILLY RAY BRACKEEN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18640
October 24, 1988 763 P.2d 59
Appeal from judgment of conviction, pursuant to jury verdict, of two counts of burglary
and one count of possession of a credit card without consent of the owner. Eighth Judicial
District Court, Clark County; Myron Leavitt, Judge.
Defendant was convicted in the district court of burglary and of possession of credit card
without consent of owner, and he appealed. The Supreme Court held that: (1) instruction
improperly directed jury to find presumed fact, and (2) evidence of prior bad acts was
admissible.
Reversed in part; affirmed in part.
Morgan D. Harris, Public Defender, Robert H. Thompson, Deputy Public Defender, Craig
Jorgenson, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, James
Tufteland, Deputy District Attorney, Alexandra C. Chrysanthis, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Instruction that person who possesses two or more credit cards belonging to someone else, is presumed
to possess cards with criminal intent constituted improper direction to jury to find presumed fact against
criminal possession defendant. NRS 47.230, subd. 2.
104 Nev. 547, 548 (1988) Brackeen v. State
2. False Pretenses.
Though jury was entitled to presume that defendant possessing two or more credit cards belonging to
someone else possessed them with criminal intent, jury was not required to adopt presumption; moreover,
because presumed fact was element of offense, presumed fact had to be proved beyond reasonable doubt.
NRS 47.230, subd. 3, 205.690, subd. 2.
3. Criminal Law.
Evidence that burglary defendant had taken other peoples' pizza and beer before burglarizing vehicles in
pizza parlor parking lot was admissible as integral part of witnesses' narration of events and as relevant to
proving identity, in that such behavior explained witnesses' heightened interest in him, thus strengthening
their positive identifications of him. NRS 48.035, subd. 1, 48.045, subd. 2.
OPINION
Per Curiam:
Billy Ray Brackeen was convicted pursuant to a jury verdict of two counts of burglary and
one count of possession of a credit card without the consent of the owner. With regard to the
conviction for illegal possession of a credit card without the consent of the owner, we hold
that the trial court erred by instructing the jury on the presumption of criminal intent without
providing additional instructions, required by statute, that the jury was not required to adopt
the presumption and that the jury must still find the presumed fact beyond a reasonable doubt.
As this error was not harmless, we reverse the conviction for illegal possession of a credit
card. Bracken's challenges to the convictions for burglary are without merit; therefore, these
convictions are affirmed.
The Facts
On the evening of May 9, 1987, Debra and Bradley Miller were eating pizza in a Round
Table Pizza Parlor in Las Vegas, Nevada, when they noticed that Brackeen, whom they did
not know, was sitting with their party. At first the Millers thought that somebody in their
party had invited Brackeen to sit down, but they soon found out that nobody knew who he
was; Brackeen had simply sat down at their table, without permission, and had begun helping
himself to their pizza and beer.
Brackeen eventually left the pizza parlor; however, because of Brackeen's earlier strange
behavior, both Debra and Bradley Miller continued to observe Brackeen's actions in the
parking lot.
1
Bradley Miller testified that he observed Brackeen approach several vehicles in
the parking lot, one of which was a Jeep, and look into the window on the driver's side.
____________________

1
Apparently the Millers were not in the parking lot but instead remained in the pizza parlor and watched
Brackeen through the window.
104 Nev. 547, 549 (1988) Brackeen v. State
several vehicles in the parking lot, one of which was a Jeep, and look into the window on the
driver's side. Both Debra and Bradley Miller testified that when they first noticed Brackeen,
he did not have a black bag with him. When Brackeen left the parking lot, however, the
Millers observed that he was then carrying a black bag.
After leaving the parking lot at the pizza parlor, Brackeen made his way to a nearby
convenience store. At the convenience store, Brackeen attempted to help a female customer
remove the radiator cap on her overheated car in order to put water in the radiator. The female
customer testified at trial that she observed that Brackeen had a black bag in his possession
and that he appeared to be intoxicated.
At approximately 10:30 p.m., two officers were dispatched to the convenience store where
they observed Brackeen attempting to assist the female customer with her car. One of the
officers began a routine interrogation of Brackeen but was forced to handcuff Brackeen after
Brackeen became belligerent and attempted to flee. After handcuffing Brackeen, the officer
retrieved the black bag that had been in Brackeen's possession. At trial, the officer testified
that as he was retrieving the black bag, Brackeen said, That's mine.' A subsequent search
of Brackeen's person turned up a wallet belonging to one Frederick Prado.
At trial, Prado testified that on the evening of May 9, 1987, he had parked his car in the
Round Table Pizza Parlor parking lot and that it had been broken into and his wallet had been
stolen. The owner of the black bag, Albert Snyder, similarly testified that he had parked his
Jeep at the pizza parlor parking lot on the evening of May 9. Snyder, however, testified that
he did not realize that his vehicle had been broken into until shortly after he arrived home,
when a police officer returned his wallet to him. Snyder testified that he had left the wallet in
his black bag while he was grocery shopping.
The Jury Instructions
At the time of his arrest, Brackeen was found to have in his possession several credit cards
belonging to Snyder, the owner of the black bag. The credit cards had Snyder's name on them,
and Snyder testified that he had not consented to Brackeen's possession of the cards. Nevada
law, NRS 205.690(3), provides that:
Any person who has in his possession or under his control two or more credit cards
issued in the name of another person or persons is presumed to have obtained and to
possess the credit cards with the knowledge that they have been stolen and with the
intent to circulate, use, sell or transfer them with intent to defraud.
104 Nev. 547, 550 (1988) Brackeen v. State
transfer them with intent to defraud. The presumption established by this subsection
does not apply to the possession of two or more credit cards used in the regular course
of the possessor's business or employment or where the possession is with the consent
of the cardholder.
Over Brackeen's objections, the trial court gave the following instruction:
Any person who has in his possession or under his control two or more credit cards
issued in the name of another person or persons is presumed to have obtained and to
possess the credit cards with the knowledge that they have been stolen and with the
intent to circulate, use, sell or transfer them with intent to defraud.
Brackeen initially contends that the above instruction violated NRS 47.230(2) by directing
the jury to find a presumed fact against him. Brackeen further contends that the trial court
erred in giving the above instruction since the trial court did not comply with NRS 47.230(3)
by additionally informing the jury that while it may regard the basic facts as sufficient
evidence of the presumed fact, it is not required to do so, and that the existence of the
presumed fact must be proved beyond a reasonable doubt. We agree.
NRS 47.230 states in pertinent part that:
1. In criminal actions, presumptions against an accused recognized at common law
or created by statute, including statutory provisions that certain facts are prima facie
evidence of other facts or of guilt, are governed by this section.
2. The judge shall not direct the jury to find a presumed fact against the accused.
When the presumed fact establishes guilt or is an element of the offense or negatives a
defense, the judge may submit the question of guilt or of the existence of the presumed
fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including
the evidence of the basic facts, could find guilt or the presumed fact beyond a
reasonable doubt. . . .
3. Whenever the existence of a presumed fact against the accused is submitted to the
jury, the judge shall give an instruction that the law declares that the jury may regard
the basic facts as sufficient evidence of the presumed fact but does not require it to do
so. In addition, if the presumed fact establishes guilt or is an element of the offense or
negatives a defense, the judge shall instruct the jury that its existence must, on all the
evidence, be proved beyond a reasonable doubt.
(Emphasis supplied.)
104 Nev. 547, 551 (1988) Brackeen v. State
In Marshall v. State, 95 Nev. 802, 603 P.2d 283 (1979), we held that pursuant to NRS
47.230(2) it was reversible error for the trial court to give an instruction based upon NRS
205.690(3)the same statute upon which the challenged instruction in this case is basedin
which the trial court directed the jury to find a presumed fact against the accused. In
Marshall, we explained that, [t]he statutory presumption of NRS 205.690(3) may be the
basis for a jury instruction permitting the jury to infer guilty knowledge and intent, without
violating NRS 47.230(2). Language directing the jury to do so is impermissible. Marshall,
95 Nev. at 804, 603 P.2d at 284 (citation omitted).
[Headnote 1]
In Marshall, the trial court had instructed the jury that if it found:
beyond a reasonable doubt that the [d]efendant . . . possessed two or more credit cards
issued in the name or names of another person or persons, you must assume that such
possession was with the knowledge that they were stolen and he intended to circulate,
use, sell or transfer them with the intent to defraud, unless the [d]efendant raises a
reasonable doubt in your minds that his possession was not with such knowledge or
intent.
Marshall, 95 Nev. at 803 n.1, 603 P.2d at 284 n.1 (emphasis supplied). In the present case,
the jury was instructed that a person who possesses two or more credit cards belonging to
someone else is presumed to possess the credit cards with criminal intent. While the is
presumed phraseology employed in the instruction challenged by Brackeen may lack the
peremptory ring of the you must assume phraseology disapproved of in Marshall, we
believe that the phrases are, nevertheless, functionally equivalent. A trial judge possesses
tremendous authority; thus, an instruction by a trial judge that under certain circumstances a
particular fact is presumed is in effect no less a directive than if the trial judge had told the
jury that it must find that fact against the accused. We conclude, therefore, that the
challenged instruction was impermissible under Marshall.
[Headnote 2]
In addition to violating NRS 47.230(2), the statute discussed in Marshall, Brackeen claims
that the trial court violated NRS 47.230(3). That statute requires that whenever the existence
of a presumed fact against the accused is submitted to the jury, the judge must additionally
instruct the jury that while the law permits the jury to regard the basic facts as sufficient
evidence of the presumed fact, the law does not require the jury to do so. Additionally, where,
as in the present case, the presumed fact establishes guilt or is an element of the offense,
NRS 47.230{3) mandates that the judge instruct the jury that the existence of the
presumed fact must, on all the evidence, be proved beyond a reasonable doubt.
104 Nev. 547, 552 (1988) Brackeen v. State
establishes guilt or is an element of the offense, NRS 47.230(3) mandates that the judge
instruct the jury that the existence of the presumed fact must, on all the evidence, be proved
beyond a reasonable doubt. While the jury was given a general instruction that the
prosecution must prove beyond a reasonable doubt every material element of the crime
charged the jury was not instructed that it was not required to adopt the presumption, nor
was the jury instructed that the existence of the presumed fact must be proved beyond a
reasonable doubt. We hold that the failure to give such instructions was violative of NRS
47.230(3).
In Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980), we wrote that violations of NRS
47.230 will not be deemed harmless where the erroneous instruction concerns an essential
element of the offense charged. Hollis, 96 Nev. at 209, 606 P.2d at 536 (citing Marshall, 95
Nev. at 804, 603 P.2d at 284). In the present case, the challenged instruction concerns
Brackeen's presumed intent to circulate, use, sell or transfer stolen credit cards with intent to
defraud, which is an essential element of the charged offense. See NRS 205.690(2). Having
concluded that the trial court improperly instructed the jury on the presumption of criminal
intent, we further hold that under Hollis that error was not harmless.
Prior Bad Acts
[Headnote 3]
Over Brackeen's objection, the trial court allowed into evidence testimony that Brackeen
had helped himself to the Miller party's pizza and beer at the Round Table Pizza Parlor before
helping himself to some personal property in the vehicles in the pizza parlor parking lot.
Brackeen contends that this evidence should not have been admitted because it was more
prejudicial than probative.
While Nevada's Evidence Code prohibits the use of other crimes, wrongs, or acts as
evidence of an accused's character in order to prove that he acted in conformity therewith on a
particular occasion, such evidence may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident in those cases where its probative value is not substantially outweighed
by the danger of unfair prejudice. Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983); NRS
48.045(2); NRS 48.035(1). The decision to admit such evidence rests with the sound
discretion of the trial court, Brinkley v. State, 101 Nev. 676, 708 P.2d 1026 (1985), and will
not be disturbed on appeal absent a showing that the ruling was manifestly wrong. Gallego v.
State, 101 Nev. 782, 711 P.2d 856 (1985), cert. denied, Gallego v. Nevada, 479 U.S. 871
(1986).
104 Nev. 547, 553 (1988) Brackeen v. State
We believe that evidence of Brackeen's depredations in the pizza parlor was relevant to
proving Brackeen's identity since Brackeen's unusual behavior explained the Miller's
heightened interest in him, thus strengthening their positive identifications of Brackeen.
Additionally, the description of Brackeen's pilfering was admissible as an integral part of the
Miller's narration of the events leading up to Brackeen's removal of the personal property
from the vehicles in the parking lot. We have adopted the rule that the State is entitled to
present a full and accurate account of the circumstances surrounding the commission of a
crime, and such evidence is admissible even if it implicates the accused in the commission of
other crimes for which he has not been charged. See Shults v. State, 96 Nev. 742, 616 P.2d
388 (1980); Dutton v. State, 94 Nev. 461, 581 P.2d 856 (1978), overruled on other grounds,
Gray v. State, 100 Nev. 556, 688 P.2d 313 (1984).
We further believe that the evidence was more probative than prejudicial. While the
evidence was mentioned at trial, it was not dwelled upon. Moreover, since the evidence of
Brackeen's guilt of burglary was overwhelming, the prejudicial effect of the challenged
testimony was at most slight. In light of the above, we cannot say that the trial court's ruling
was manifestly wrong, and we will not disturb it on appeal.
The conviction for possession of a credit card without the owner's consent is hereby
reversed. If the State seeks to pursue this matter, a new trial must be held on that charge. The
burglary convictions are affirmed.
____________
104 Nev. 553, 553 (1988) Brion v. Union Plaza
LARRY BRION and BARBARA BRION, Appellants, v. UNION PLAZA CORPORATION,
dba UNION PLAZA HOTEL AND CASINO, and SIERRA
ELEVATOR COMPANY, Respondents.
No. 18302
October 24, 1988 763 P.2d 64
Appeal from an order of the district court, dismissing the case. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Appeal was taken from order of the district court which dismissed suit for failure of
plaintiffs to file nonresident cost bond. The Supreme Court held that: (1) dismissal was
proper with respect to one defendant who made demand for bond, but {2) dismissal was
improper with respect to second defendant who did not make demand.
104 Nev. 553, 554 (1988) Brion v. Union Plaza
respect to one defendant who made demand for bond, but (2) dismissal was improper with
respect to second defendant who did not make demand.
Affirmed in part; reversed in part.
John E. Kelly and John E. Stone, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Respondent Union Plaza.
1. Costs.
Dismissal of suit because of failure of plaintiffs to post nonresident bond after demand was made by
defendant was proper where plaintiffs did not misunderstand the bond requirement but simply failed to file
the bond within the required time. NRS 18.130, subd. 4.
2. Costs.
Dismissed of suit because of plaintiffs' failure to file nonresident cost bond should have been limited to
dismissal with respect to the defendant which made demand for the bond and should not have included
dismissal against other defendant. NRS 18.130.
3. Costs.
Requirement of nonresident cost bond is statutory right which must be properly invoked by each
defendant and dismissal of one defendant on grounds of failure to file the bond does not affect the action
against the other defendants who have not even joined in demand. NRS 18.130.
4. Appeal and Error.
Defendant's failure to respond when it was ordered to be joined as a respondent on appeal and failure to
appear at oral argument was a confession of error with respect to dismissal of action after entry of default
judgment against it and default judgment would be affirmed.
OPINION
Per Curiam:
This is an appeal from an order of the district court, dismissing appellants' lawsuit. For the
reasons expressed in this opinion, we affirm the decision as to respondent Union Plaza
Corporation (Union Plaza), but reverse as to the second respondent, Sierra Elevator
Company.
Larry and Barbara Brion filed their suit against Union Plaza and Sierra Elevator Company
to recover damages for injuries sustained in an elevator accident at the Union Plaza Hotel and
Casino on January 19, 1985. Union Plaza was served with a summons and complaint on
January 20, 1987, and responded by making a demand for a nonresident cost bond on
February 6, 1987. NRS 18.130. Appellants did not pose the required bond until April 15,
1987, 68 days after the demand was made.
104 Nev. 553, 555 (1988) Brion v. Union Plaza
[Headnote 1]
NRS 18.130(4) provides that the court may dismiss the action if the cost bond is not
posted within 30 days from the date of the demand. We have held that if such a dismissal is
granted, the decision will not be overturned absent an abuse of the court's discretion. Borders
Electronic Co. v. Quirk, 97 Nev. 205, 626 P.2d 266 (1981). Appellants did not request an
extension of time to post the bond. Union Plaza's motion to dismiss was unopposed, and
appellants failed to advise the district court that the bond had been posted before the grant of
the dismissal was entered. Appellants did not misunderstand the bond requirement; they
simply failed to file it within 30 days. This lapse does not suffice to justify a reversal of the
district court's decision. Id. at 207, 626 P.2d at 267.
[Headnotes 2, 3]
The order entered by the district court is ambiguous because it does not specifically
dismiss appellant's case against Sierra Elevator Company. We note, however, that Union
Plaza's motion requested that the suit be dismissed in its entirety. The same request was made
during oral argument to this court.
In our opinion, such a result would be unfair to the appellants and would grant an
unwarranted benefit to Sierra Elevator Company. The requirement of a cost bond is a
statutory right which must be properly invoked by each defendant. Dismissal of one
defendant on this ground does not affect the action against other defendants who have not
even joined in the demand. See Fuller v. State of California, 1 Cal.App.3d 664 (1969); Taylor
v. Powell, 200 Cal.App.2d 780 (1962). Furthermore, we have required that a bond be posted
by each plaintiff when a demand is made. Fourchier v. McNeil Const. Co., 68 Nev. 109, 227
P.2d 429 (1951). Fairness requires that each defendant protect its own rights by invoking the
bond requirement.
[Headnote 4]
Sierra Elevator Company did not answer the complaint, did not appear in district court,
and suffered a default judgment to be entered against it. After the appeal was filed, this court
ordered that Sierra Elevator Company be joined as a respondent, and further ordered that
copies of the briefs should be served upon it. This was done; however, Sierra Elevator failed
to respond and did not appear at oral argument. We regard their absence as a confession of
error, and therefore affirm the default judgment.
We affirm that part of the district court's order which dismissed the action against
respondent Union Plaza. The case is hereby remanded for entry of default against respondent
Sierra Elevator Company.
____________
104 Nev. 556, 556 (1988) Owens-Corning v. Texas Commerce
OWENS-CORNING FIBERGLAS CORPORATION, a Delaware Corporation; and
ROSCORP, INC. and AMERICAN BORATE CORPORATION, dba AMERICAN
BORATE COMPANY, a California Partnership, Appellants/Cross-Respondents, v. TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a National Banking Association;
MOUNTAIN VIEW HOMES, INC., a Nevada Corporation, Respondents/Cross-Appellants.
No. 18418
October 25, 1988 763 P.2d 335
Appeal and cross-appeal from a judgment of the district court granting appellants relief
from liability upon a guaranty and holding respondent's deed of trust senior to appellant's
deed of trust. Fifth Judicial District Court, Nye County; William P. Beko, Judge.
Lender sought to recover from loan guarantor following borrower's default. The district
court applied Nevada law and found that portion of debt was not recoverable against
guarantor. On appeal, the Supreme Court, held that: (1) law of Texas applied to loan guaranty
agreement; (2) guarantor's unconditional and absolute guaranty rendered it responsible for
those disbursements not made in compliance with loan agreement; and (3) grantor's
unconditional subordination of its deed of trust was effective even to loan disbursements
which were not made in compliance with agreement.
Reversed in part; affirmed in part.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellants/Cross-Respondents.
Jones, Jones, Close & Brown and Gary R. Goodheart, Las Vegas; Liddell, Sapp, Zivley &
Hill and Edward P. Watt, Austin, Texas, for Respondents/Cross-Appellants.
1. Guaranty.
Texas law applied to construction of loan guaranty agreement, as specified in the agreement, even though
Nevada law applied to loan agreement as specified by its terms.
2. Guaranty.
Under Texas law, guarantors under unconditional and absolute loan guaranty were responsible for
lender's disbursement of loan proceeds to borrower even though guarantor had not approved the
disbursements as required under the terms of the loan agreement, where borrower, in order to obtain further
disbursements, photocopied guarantor's authorizing signatures onto necessary documents and evidence did
not demonstrate that lender knew the signatures were not duly executed; unconditional guaranty waived
any defects.
104 Nev. 556, 557 (1988) Owens-Corning v. Texas Commerce
3. Guaranty.
Under Texas law, photocopied signatures of loan guarantor's authorized agents on loan agreement forms
were defect or deficiency waived by guarantor's absolute and unconditional guaranty; loan guarantor was
responsible for repayment of the loan proceeds which were disbursed by use of the photocopied signatures.
4. Mortgages.
Guarantor's unconditional subordination of its deed of trust to deed of trust belonging to lender was
effective to those loan disbursements which were not made in compliance with loan agreements; borrower
had photocopied the signatures of grantor's authorized agents to obtain further loan disbursements.
5. Mortgages.
Where a knowledgeable and sophisticated party enters an unconditional mortgage subordination
agreement, conditions will not be implied or imputed.
OPINION
Per Curiam:
American Borate Company, owner of a mining operation, and Mountain View Homes,
Inc., a developer corporation, decided that they would mutually benefit by the construction of
a shopping center and apartment complex (Project) in Nye County. Texas Commerce Bank
National Association agreed to finance the Project as an accommodation to, and based on the
credit strength of, American Borate and Owens-Corning Fiberglas, American Borate's parent
corporation. Owens-Corning and American Borate (Guarantors) guaranteed the loan.
The parties entered the following agreements: A Loan Agreement executed by Mountain
View and Texas Commerce; an absolute and unconditional Guaranty which Owens-Corning
and American Borate executed and delivered to Texas Commerce; a Deed of Trust executed
and delivered by Mountain View to Texas Commerce; another Deed of Trust executed and
delivered by Mountain View to Owens-Corning in which Owens-Corning subordinated its
Deed of Trust to that of Texas Commerce.
The Loan Agreement provided that prior to disbursement of any advances for construction,
a Request for Advance form would be signed by both Mountain View and American Borate
and submitted to Texas Commerce. Six of the Requests contained xeroxed copies of the
signatures of American Borate personnel. These disputed Requests totaled $280,000.
Mountain View defaulted under the terms of the Loan Agreement. Guarantors paid Texas
Commerce the sum of $1,220,000, plus accrued interest. However, they refused to pay the
remaining $280,000 which Texas Commerce had advanced because they claimed that Texas
Commerce had failed to comply with the Request for Advance procedures of the Loan
Agreement.
104 Nev. 556, 558 (1988) Owens-Corning v. Texas Commerce
claimed that Texas Commerce had failed to comply with the Request for Advance procedures
of the Loan Agreement.
Owens-Corning and American Borate filed suit against Texas Commerce for declaratory
relief and to quiet title to the property subject to the deeds of trust. The trial court declared
that Owens-Corning and American Borate were not liable to Texas Commerce for the
$280,000, because the xeroxed signatures on the disputed Requests did not comply with the
Loan Agreement procedures. But it declared that Texas Commerce's Deed of Trust was senior
to the Owens-Corning Deed of Trust as to the $280,000.
The parties appeal both rulings. Additionally, Texas Commerce cross-appeals, claiming
that (1) Texas law governs the disputed $280,000 under the Guaranty, (2) the district court
abused its discretion in denying Texas Commerce's motion for continuance, and (3) the
district court erred in granting summary judgment against Texas Commerce.
THE GUARANTY
[Headnote 1]
The Loan Agreement expressly provides that Nevada law shall govern all of the Loan
Documents, while the Guaranty states that the laws of the United States and Texas shall
control its provisions. The district court held that the specific choice-of-law provision of the
Loan Agreement controlled over the general provision of the Guaranty. Texas Commerce
contends that the lower court erred in applying Nevada law to resolve whether the Guarantors
are liable under the Guaranty for the disputed $280,000.
The term Loan Documents, as defined in the Loan Agreement, does not include the
Guaranty within its definition. The definition includes certain specified documents as well as
all other instruments executed by the Borrower. . . . Since the Borrower (Mountain View)
did not execute the Guaranty, and since the Guaranty is not one of the specified documents,
the Guaranty is not one of the Loan Documents. As such, the choice-of-law provision in the
Loan Agreement does not encompass the Guaranty. Thus, the district court erred in ruling
that Nevada law applies because the Guaranty's own choice-of-law provision should govern
its disposition. Under the Guaranty, Texas law controls this dispute.
[Headnote 2]
An absolute guaranty is one which is conditioned solely upon the event of default by the
principal obligor of fulfilment [sic] of the duty the performance of which is guaranteed."
104 Nev. 556, 559 (1988) Owens-Corning v. Texas Commerce
the duty the performance of which is guaranteed. McGhee v. Wynnewood State Bank, 297
S.W.2d 876, 883 (Tex.Civ.App. 1956). The Guaranty, by its own provisions, is an absolute
and unconditional guaranty by Owens-Corning and American Borate of payment and
performance of Mountain View's obligations.
Texas Commerce argues that the district court erred in ruling that Texas Commerce did
not comply with the Request for Advance procedures, and thus these procedures acted as a
condition precedent to the Guarantor's liability under the Guaranty. We agree.
The Loan Agreement provides that each written document required by this Agreement . . .
shall be duly executed by the person or persons specified. Since Mountain View submitted
six of the Requests over xeroxed copies of the signatures of American Borate personnel, the
Requests were not duly executed. However, these facts demonstrate that Mountain View, not
Texas Commerce, failed to comply with the Request for Advance procedures. The record
presents no evidence that Texas Commerce should have recognized these signatures as not
duly executed.
[Headnote 3]
Moreover, the Guaranty provides that it shall in no way be affected by . . . any invalidity
or defect or deficiency in any of the Loan Documents. . . . The xeroxed signatures are a
defect or deficiency contemplated by the language in the Guaranty, and Guarantors waived
their right to complain about such a defect. Therefore, we reverse the district court's
declaration that the Guarantors are not liable for the disputed $280,000 under the Guaranty.
THE DEEDS OF TRUST
[Headnote 4]
The Owens-Corning Deed of Trust expressly provides that: This Deed of Trust is
secondary and subordinate to a Deed of Trust executed by Trustor in favor of Texas
Commerce Bank National Association of even date herewith. . . . The district court held that
because the Owens-Corning Deed of Trust did not in any way condition its subordination to
the Texas Commerce Deed of Trust, a complete and total subordination resulted.
[Headnote 5]
Owens-Corning argues that the subordination agreement applies only to loans made in
accordance with the procedures of the Loan Agreement. We disagree. When, as here, a
knowledgeable and sophisticated party, in no need of the court's protection, enters an
unconditional subordination agreement, this court will not imply or impute conditions into
the agreement.
104 Nev. 556, 560 (1988) Owens-Corning v. Texas Commerce
not imply or impute conditions into the agreement. See National Bank of Washington v.
Equity Investors, 506 P.2d 20 (Wash. 1973) (enforcing an express and unconditional
subordination agreement against a knowledgeable and sophisticated party when the party
claimed not to understand the implications of the agreement). Therefore, we affirm the
district court holding.
Our disposition of these issues renders it unnecessary to discuss Texas Commerce's
remaining claims. For the foregoing reasons, we reverse the district court judgment granting
Owens-Corning and American Borate relief upon the Guaranty for the remaining $280,000,
and affirm the district court's declaration that Texas Commerce's Deed of Trust has priority
over Owens-Corning's Deed of Trust.
1

____________________

1
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this matter.
____________
104 Nev. 560, 560 (1988) Depner Architects v. Nev. Nat'l Bank
DEPNER ARCHITECTS AND PLANNERS, INC., Appellant, v.
NEVADA NATIONAL BANK, Respondent.
No. 17391
October 26, 1988 763 P.2d 1141
Appeal from order granting motion to dismiss. Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Architect sought to enforce mechanics' lien against debtor and bank which held deed of
trust on ranch. The district court dismissed action, and architect appealed. The Supreme Court
held that: (1) relief from stay of proceedings in bankruptcy granted to bank which held deed
of trust on ranch lifted stay only as to bank, and (2) architect could maintain cross-claim
against bank.
Reversed and remanded.
James C. VanWinkle, Reno, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Joan C. Wright, Carson City,
and Keith A. Kandarian, San Francisco, for Respondent.
1. Mortgages.
Mechanics' lien claimant which began actual construction before bank holding deed of trust recorded its
interest would have rights superior to recorded interest of bank. NRS 108.225, subd. 2.
104 Nev. 560, 561 (1988) Depner Architects v. Nev. Nat'l Bank
2. Mechanics' Liens.
Claim of architect was timely made where filed prior to 30 days after sale of property involved in
bankruptcy proceeding. Bankr.Code, 11 U.S.C.A. 362(a).
3. Bankruptcy.
When stay of proceedings is lifted by bankruptcy court, it is lifted only as to moving party. Bankr.Code,
11 U.S.C.A. 362(a).
4. Bankruptcy.
Termination of stay of proceedings during bankruptcy on motion of one creditor does not similarly
terminate stay as to other creditors, and bankruptcy courts make individualized determinations when
considering multiple requests for relief. Bankr.Code, 11 U.S.C.A. 362(a).
5. Bankruptcy.
Stay of proceedings during pendency of bankruptcy for mechanic's lienholder remained in effect at least
until property was actually sold where mechanic's lienholder did not move for relief from stay of
proceedings. Bankr.Code, 11 U.S.C.A. 108(c).
6. Bankruptcy.
Filing of complaint against nondebtor during pendency of bankruptcy does not violate stay of
proceedings but, rather, stay of proceedings protects only debtor against suit during bankruptcy.
Bankr.Code, 11 U.S.C.A. 362(a).
7. Mechanics' Liens.
Claim of architect who held mechanic's lien on ranch against bank which held deed of trust on ranch and
sold ranch in foreclosure proceeding was cross-claim and not compulsory counterclaim in action by
another mechanic's lien claimant.
8. Set-Off and Counterclaim.
Cross-claims are permissive and not compulsory. NRCP 13(g).
OPINION
Per Curiam:
Depner Architects and Planners, Inc. filed their complaint to enforce a mechanic's lien
more than six months after recordation because the intervening bankruptcy of the property
owners had operated to stay enforcement. The district court dismissed the action.
1
We
reverse.
Beginning in 1980, Depner Architects and Planners, Inc., (Depner) provided services in
connection with improvements on the Double Diamond Ranch in Washoe County. It recorded
a mechanic's lien on February 19, 1982. NRS 108.233 provides that a mechanic's lien is only
valid for six months unless enforcement proceedings are commenced within that time. Three
months before the time for filing Depner's complaint expired, the Bennys filed a petition in
bankruptcy.
____________________

1
Although the Bank's motion was styled as a motion to dismiss for failure to state a claim, both parties have
presented and argued matters outside the pleadings. The motion and order shall, therefore, be treated as
pertaining to summary judgment. NRCP 12(b).
104 Nev. 560, 562 (1988) Depner Architects v. Nev. Nat'l Bank
before the time for filing Depner's complaint expired, the Bennys filed a petition in
bankruptcy. The filing operated as an automatic stay of any act to enforce a lien. 11 U.S.C.
362(a)(4) (1982). Depner was thereby precluded from initiating proceedings before the end of
the normal filing period.
[Headnote 1]
Respondent Nevada National Bank (the Bank) held a promissory note secured by a deed of
trust on the Double Diamond Ranch.
2
It had filed a notice of default and election to sell
before the Bennys filed their bankruptcy petition. At some time after the petition was filed,
the Bank moved for relief from the automatic stay, in the form of permission to foreclose on
the ranch. Depner was not a party to this motion and was not served with notice. The Bank's
request for relief was granted by the bankruptcy court on January 4, 1985.
[Headnote 2]
Respondent's counsel conceded at oral argument that the ranch was actually sold on June
18, 1985. Depner filed its complaint on May 30, 1985. Apparently the filing of the complaint
occurred because Depner became aware of the impending sale. Since the date of notice is
entirely unknown, the district court erred in granting the dismissal. It is clear that the
Bankruptcy Code allows a non-bankruptcy action to be filed within 30 days of notice of
termination of the stay.
3
The district court could not properly determine when the 30-day
limitation ran, because no evidence of notice to Depner exists in the record.
____________________

2
It is not clear from the record which party was the senior lienor. Depner began providing services in 1980.
The bank recorded its deed of trust in 1981. If Depner began actual construction before the Bank recorded its
interest, the deed of trust would have become subordinate to Depner's lien on recordation of that lien. NRS
108.225(2); Aladdin Heating v. Trustees, Cent. States, 93 Nev. 257, 260, 563 P.2d 82, 84 (1977).

3
11 U.S.C. 108(c):
(c) Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered
in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil
action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with
respect to which such individual is protected under section 1201 or 1301 of this title, and such period has
not expired before the date of the filing of the petition, then such period does not expire until the later of
(1) the end of such period, including any suspension of such period occurring on or after the
commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay . . .
104 Nev. 560, 563 (1988) Depner Architects v. Nev. Nat'l Bank
[Headnotes 3-6]
When a stay is lifted by the bankruptcy court, it is lifted only as to the moving party. In re
Saint Peter's School, 26 Bankr. 589 (S.D.N.Y. 1983). The termination of a stay on the motion
of one creditor does not similarly terminate the stay as to other creditors; the bankruptcy
courts make individualized determinations when considering multiple requests for relief. See
In re del Gizzo, 5 Bankr. 446 (D.R.I. 1980) (court has discretion to lift stay as to junior, and
not senior lienor, when junior interest would otherwise be extinguished but senior interest
would not be impaired). Cf. In Matter of Beaucrest Rlty. Associates, 4 Bankr. 166 (E.D.N.Y.
1980) (first mortgagor allowed to foreclose, while second mortgagors subject to continuance
of stay). We note the bankruptcy court in this case granted relief to Capital City Federal
Savings and Loan Association in a separate order. This strongly suggests each order operated
to vacate the stay only as to the moving party. As to Depner, the stay remained in effect at
least until the property was actually sold.
4
Therefore, pursuant to 11 U.S.C. 108(c)(2),
Depner had at least 30 days after June 18, 1985 to file its complaint.
5

[Headnotes 7, 8]
The Bank also contends Depner's claim was barred because it was a compulsory
counterclaim in an action by another mechanic's lien claimant. This argument is meritless.
Depner's claim against the Bank would be a cross-claim in the other action, and not a
counterclaim. A counterclaim is a claim against an opposing party. See NRCP 13(a), (b). A
claim against a co-party is a cross-claim. See NRCP 13(g). Further, cross-claims are
permissive. Id.
Since dismissal of Depner's action could not be properly based on any of the grounds
advanced in the Bank's motion to dismiss, we hereby reverse the judgment of the district
court. We remand this matter with instructions to reinstate appellant's complaint.
____________________

4
Until the property changed ownership, it remained part of the debtor's estate. In re Saint Peter's School,
supra, 26 Bankr. at 590. The automatic stay granted by 11 U.S.C. 362(a) prevents any action against the debtor;
since the stay had not previously been terminated as to Depner, it remained in effect so long as the property was
part of the debtor's estate. See In re Newman, 53 Bankr. 7 (M.D.Tenn. 1985).

5
The filing of a complaint against non-debtors does not violate the stay, because 11 U.S.C. 362(a) is
intended to protect only the debtor. In re Garnett, 47 Bankr. 170 (E.D.N.Y. 1985); Pitts v. Unarco Industries,
Inc., 698 F.2d 313 (7th Cir. 1983); Lynch v. Johns-Manville Sales Corp., 23 Bankr. 750 (S.D.Ohio 1982).
Therefore, while Depner's suit against the Bennys is void, its complaint against the Bank and other
co-defendants is valid and timely.
____________
104 Nev. 564, 564 (1988) Southern Trust v. K & B Door Co.
SOUTHERN TRUST MORTGAGE COMPANY, Appellant, v. K & B DOOR COMPANY,
INC., NEVADA DRYWALL COMPANY OF LAS VEGAS, INC., MS CONCRETE
COMPANY, NEVADA PAINTING COMPANY OF LAS VEGAS, INC., OWENS
PLASTERING COMPANY, INC., RIVERSIDE ACOUSTICS, INC., BUD YATES
CONSTRUCTION COMPANY, INC., WHOLESALE BUILDING SUPPLY, DEAN
ROOFING, CLASSIC PLUMBING, STRAWN INSULATION, DAVIS MASONRY, ARC
AMERICA, KIMTRUSS, STRATTON ELECTRIC, TROPIC AIR CONDITIONING,
WICKES LUMBER AND XA CABINET, Respondents.
No. 17630
October 26, 1988 763 P.2d 353
Appeal from an amended judgment in a consolidated case determining the validity and
priority of various mechanic's liens. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
During dispute over whether deed of trust was superior to mechanic's lienholders, the
district court after reference to the special master, found in favor of lienholders. On appeal,
the Supreme Court held that: (1) District Court was not authorized to appoint master for all
issues set forth in pleadings; (2) future advances were required under loan agreement and
related back to initial deed of trust; and (3) language of loan agreement was clear and
unambiguous.
Reversed.
[Rehearing denied January 31, 1989]
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Appellant.
John Peter Lee and Barney C. Ales, Las Vegas, for Respondents K & B Door Company,
Inc., MS Concrete Company, Nevada Drywall Company of Las Vegas, Inc., Nevada Painting
Company of Las Vegas, Inc., Owens Plastering Company, Inc., Riverside Acoustics, Inc. and
Bud Yates Construction Company, Inc.
L. Earl Hawley, Las Vegas, for Respondent Classic Plumbing.
Vargas & Bartlett, Las Vegas, for Respondent Strawn Insulation.
Robert K. Dorsey, Las Vegas, for Respondent Wholesale Building Supply.
104 Nev. 564, 565 (1988) Southern Trust v. K & B Door Co.
Leavitt & Leavitt, Las Vegas, for Respondent Dean Roofing.
John P. Foley, Las Vegas, for Respondent Arc America.
E. Leslie Combs, Jr., Las Vegas, for Respondent Kimtruss.
Donald R. Davidson, Las Vegas, for Respondent Stratton Electric.
John Boyer, Las Vegas, for Respondent Wickes Lumber.
Harding & Dawson, Las Vegas, for Respondent XA Cabinet.
Marquis & Haney, Las Vegas, for Respondent Tropic Air Conditioning.
Hale, Lane, Peek, Dennison & Howard and Richard L. Elmore, Reno, for Amicus Curiae
Chicago Title Insurance Company.
1. Reference.
District court was not authorized to refer all issues set forth in pleadings in a deed of trust superiority
dispute to a special master. NRCP 53(b); NRS 108.239, subd. 5.
2. Mortgages.
Financier of housing project which held deed of trust to project was obligated to make future advances
for repair and maintenance of the project under agreement and those advances related back to original deed
of trust and were secured by it; loan agreements specifically provided that lender was obligated to make
future advances, and rendered advances superior to mechanic's liens.
3. Contracts.
Where document is clear and unambiguous, court must construe it from the language therein.
OPINION
Per Curiam:
Appellant Southern Trust Mortgage Company (STM) financed the Victoria Villas housing
project in Clark County. The developer, Renaissance Development Company, Inc.
(Renaissance), arranged a loan from STM for the estimated construction costs. The first funds
were advanced on December 22 of 1981, secured by a deed of trust on the whole project. The
loan agreement between STM and Renaissance very unequivocally provided that
[a]nything herein to the contrary notwithstanding, it is specifically understood and
agreed that all funds furnished by Lender [STM] and employed in performance of the
obligations of Borrower [Renaissance] under this agreement shall be deemed
advanced by Lender under an obligation to do so regardless of the identity of the
person or persons to whom such funds are furnished.
104 Nev. 564, 566 (1988) Southern Trust v. K & B Door Co.
Lender [STM] and employed in performance of the obligations of Borrower
[Renaissance] under this agreement shall be deemed advanced by Lender under an
obligation to do so regardless of the identity of the person or persons to whom such
funds are furnished.
(Our emphasis.) Apparently designed to remove any conceivable quibble about the obligatory
nature of future advances by STM to Renaissance, the same paragraph of the loan agreement
went on the specify that
[f]unds advanced in the reasonable exercise of its [STM's] judgment that the same are
needed to complete the improvements or to protect its security are to be deemed
obligatory advances hereunder and are to be added to the total indebtedness secured by
the Note and Deed of Trust and said indebtedness shall be increased accordingly.
(Our emphasis.)
All parties agree, and the trial court found (by adoption of the master's report), that if STM
were legally obligated to lend Renaissance additional funds to complete the project, all
amounts loaned under the original acquisition and development loan and all subsequent
advances made under interim construction loans would relate back to the security of the
December 1981 deed of trust.
1
Such circumstances would result in STM's holding a priority
lien by its deed of trust which is superior to all other liens, including the mechanic's liens
claimed by the named respondents. Therefore, the dispositive question in this case and on this
appeal is whether the future advances made by STM were obligatory and thus secured by the
December 1981 deed of trust.
There is nothing in the loan agreement or other documents created by the parties, nor in
the parties' conduct, nor in the nature of the parties' legal relations that even remotely suggests
anything but a clear duty on the part of STM to advance monies under the agreed-upon
obligation to do so. This conclusion is cemented by the parties' unambiguous written
agreement that all funds are to be deemed obligatory advances. It is difficult to explain
how anyone could rationally come to a contrary conclusion.
2
[Headnote 1]
[Headnote 1]
____________________

1
This kind of arrangement is broadly accepted in the financial world. For a textual discussion see, for
example, 2 H. Miller and M. Starr, Real Estate Law, 11:115 (Rev. Ed. 1977) (Wherein the authors discuss the
rather common type of situation in which a deed of trust contains a future advances clause, and the lender is
obligated to make advances. Such obligatory advances take priority from the date of the recordation of the
original deed of trust.)

2
In apparent disregard of the specific language of the deed of trust, which declared the advances to be
obligatory, the respondents argued and the
104 Nev. 564, 567 (1988) Southern Trust v. K & B Door Co.
[Headnote 1]
Perhaps the only explanation of this untoward result lies in the fact that this case was
turned over in its entirety by the district judge to a special master who was authorized by the
trial court to hear and decide the whole matter. The trial judge's order appointing the special
master improperly authorized a lay person to take and hear the evidence offered by the
respective parties, to ascertain and report upon the subject liens and the amounts, if any, justly
due thereon, and to make findings of fact on all issues set forth in the pleadings. (Our
emphasis.) We need not go at great length into the impropriety of the trial judge's handling of
this matter because the very nature of our decision makes such a discussion unnecessary.
Suffice it to say that neither NRS 108.239(5),
3
nor NRCP 53(b)
4
authorized the district
judge to refer all issues set forth in the pleadings to the special master. Moreover, in
addition to the fact that there is no statutory authority empowering the trial judge to refer the
entire case to a special master, this court has previously warned that this type of blanket
delegation approaches an unallowable abdication by a jurist of his constitutional
responsibilities and duties. Russell v. Thompson, 96 Nev. 830, 830, 619 P.2d 537, 539
(1980).
[Headnote 2]
As discussed above, there is but one crucial and dispositive question determining the
outcome of this case: whether STM was legally obligated to make the advances to
Renaissance, thereby securing the monies advanced under the December 1981 deed of trust.
For the reasons previously stated, we conclude that the deed of trust created in STM a clear
contractual duty to supply the advances to Renaissance and that that contract was in full effect
until it was breached by Renaissance's diversion of STM funds to another project.
Accordingly, the advances paid by STM were obligatory and therefore secured under the
December 19S1 deed of trust.
____________________
special master found that because STM had the right to inspect regularly the progress of the construction on the
housing project, the advances were mysteriously rendered optional rather than obligatory. Such reasoning is
faulty. Parties to a contract must be allowed a means by which to verify whether the terms of that contract are
being complied with. To construe the term obligatory advance as a literal requirement that a lender can have
absolutely no discretion or any conditions relating to future advances in a mortgage would defeat the purpose of
the loan and probably bring an end to construction money loans. Dempsey v. McGowan, 722 S.W.2d 848, 850
(Ark. 1987).

3
NRS 108.239(5) permits the appointment of a master to ascertain and report on the liens and the amount
[sic] justly due thereon.

4
NRCP 53(b) provides that in actions not tried to a jury, the reference to a special master must be limited in
scope to matters of account or difficult computation of damages unless there is a showing that some other
exceptional circumstance necessitates the reference.
104 Nev. 564, 568 (1988) Southern Trust v. K & B Door Co.
were obligatory and therefore secured under the December 1981 deed of trust. The result is
that STM's claim is superior to those of the named respondents.
[Headnote 3]
On numerous occasions this court has ruled that where a document is clear and
unambiguous on its face, the court must construe it from the language therein. See Renshaw
v. Renshaw, 96 Nev. 541, 611 P.2d 1070 (1980); Mohr Park Manor, Inc. v. Mohr, 83 Nev.
107, 424 P.2d 101 (1967); Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947);
Rankin v. New England M. Co., 4 Nev. 78 (1868). The language giving rise to the obligatory
character of the STM-Renaissance agreement could not be plainer. There is no cognizable
issue relative to the breadth of STM's security interest under the December 1981 deed of trust.
STM's security is prior in rank to all other liens; hence, the claims of respondents must fail.
This case is reversed and judgment will be entered in favor of Southern Trust Mortgage
Company and against the named respondents. The award of attorney's fees and master's fees
will be disallowed.
5

____________________

5
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 568, 568 (1988) Hunter Mining v. Management Assistance
HUNTER MINING LABORATORIES, INC., Appellant, v. MANAGEMENT
ASSISTANCE, INC., and APPLICATION SOFTWARE CORP., Respondents.
No. 18197
October 26, 1988 763 P.2d 350
Appeal from judgment notwithstanding the verdict and conditional new trial upon reversal.
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Buyer appealed an order of the district court which granted judgment n.o.v. for computer
manufacturer in action by buyer for breach of computer sales contract by manufacturer's
dealers. The Supreme Court held that there was no actual or apparent agency between
manufacturer and dealers as would subject manufacturer to liability for dealers' breaches.
Affirmed.
Michael J. Morrison, Reno, for Appellant.
104 Nev. 568, 569 (1988) Hunter Mining v. Management Assistance
Beasley, Hamilton & Holden, Reno; and Hansen, Boyd, Culhane & Mounier, Sacramento,
California, for Respondents.
1. Principal and Agent.
Computer dealers were not agents of computer manufacturer as was required to hold manufacturer liable
for dealers' breach of contracts with computer buyer; manufacturer did not control day to day or operative
details of dealers' businesses, nor did dealers have a fiduciary obligation to act primarily for benefit of
manufacturer in sale of computers and software.
2. Principal and Agent.
There was no apparent agency between computer manufacturer and computer dealers as would warrant
holding manufacturer liable for dealers' breach of computer sales contracts since buyer did not rely on any
manufacturer representations of agency when entering into its contracts with dealers.
OPINION
Per Curiam:
In January and February of 1981, appellant Hunter Mining Laboratories, Inc. (Hunter)
and Hubco Data Products Corporation (Hubco) signed contracts in which Hubco agreed to
sell and Hunter to buy Basic Four computer equipment. Hubco also agreed to install the
equipment and customize some of the stock Basic Four software to accommodate the specific
needs of Hunter's business.
Hubco delivered most of the equipment, but closed its business in Nevada without
completing the installation or the specialized software programming.
Hunter hired The Data Doctors Corporation (Data Doctors) to complete the software
programming which Hubco had begun. Unfortunately, Data Doctors, like Hubco, did not
fulfill its part of the agreement.
Respondents Management Assistance, Inc. (MAI) and M.A.I. Application Software
Corporation (MAI Software), an MAI subsidiary, manufactured the computer products
which Hubco sold to Hunter. Both Hubco and Data Doctors were licensed distributors of
MAI computer products in the Reno, Nevada area.
Hunter brought this action against MAI and MAI Software for breach of the contracts that
Hunter signed with Hubco and Data Doctors.
1
Because neither MAI nor MAI Software was
a party to either of the two contracts upon which Hunter bases its action, liability on the part
of the MAI companies was dependent upon an agency relationship between Hubco and
Data Doctors, the contracting parties in the Hunter agreements and the MAI companies.
____________________

1
Hubco and Data Doctors were also defendants in this lawsuit but are not parties to this appeal.
104 Nev. 568, 570 (1988) Hunter Mining v. Management Assistance
agency relationship between Hubco and Data Doctors, the contracting parties in the Hunter
agreements and the MAI companies.
Although the jury did find the MAI companies liable for breach of contract, the trial court
determined that no evidence supported the jury's implicit finding of an agency relationship.
Consequently, the court granted MAI's motion for judgment notwithstanding the verdict.
2

In light of the review standards for judgments n.o.v., the issue before this court is whether
any evidence, viewed in the light most favorable to Hunter, tends to support the jury's finding
of agency and its verdict against the MAI companies. See Wilkes v. Anderson, 100 Nev. 433,
683 P.2d 35 (1984); Dudley v. Prima, 84 Nev. 549, 455 P.2d 31 (1968).
[Headnote 1]
Given the necessary elements of an agency relationship, we conclude that the district court
was correct in determining that no evidence supports the jury's verdicts against MAI and MAI
Software.
In an agency relationship, the principal possesses the right to control the agent's conduct.
Restatement (Second) of Agency 14 (1958). This principle of agency, however, does not
mean that an agency relationship exists every time one party has a contractual right to control
some aspect of another party's business. See, e.g., Schear v. Motel Management Corp. of
America, 487 A.2d 1240 (Md.Ct.Spec.App. 1985); Murphy v. Holiday Inns, Inc., 219 S.E.2d
874 (Va. 1975).
The MAI/Hubco dealership agreement gave MAI some degree of control over the manner
in which Hubco handled MAI products. For example, the agreement required Hubco to
maintain an appropriate premises, to inform MAI of changes in Hubco management, and to
submit monthly reports to MAI indicating the number of prepackaged Basic Four software
units it installed. The agreement also granted MAI the right to monitor Hubco's advertisement
of Basic Four products, the right to refuse to sell to Hubco if Hubco did not meet certain
credit standards, and the right to rescind the dealership contract under specified conditions.
These types of controls, typical in manufacturer/distributor agreements, protect MAI's
goodwill and the integrity of the Basic Four products line. They are not, however, the types of
control that create a question of fact regarding agency. See Coty v. U.S.
____________________

2
The district court also conditionally granted MAI's motion for a new trial pursuant to NRCP 50(c)(1).
Because we affirm the judgment n.o.v., it is unnecessary to discuss the propriety of alternate relief granted in the
form of a new trial.
104 Nev. 568, 571 (1988) Hunter Mining v. Management Assistance
Slicing Machine Co., Inc., 373 N.E.2d 1371 (Ill.Ct.App. 1978); Schear v. Motel Management
Corp. of America, 487 A.2d 1240; Murphy v. Holiday Inns, Inc., 219 S.E.2d 874. Only when
a manufacturer controls the day to day or operative details of the dealer's business is an
agency potentially created. Ortega v. General Motors Corp., 392 So.2d 40 (Fla.Dist.Ct.App.
1981).
The MAI companies had no control over either Hubco's or Data Doctors' day to day
business activities. MAI had no power to control Hubco business expenditures, fix Hubco
customer rates, or demand a share in Hubco's profits. See Murphy, 219 S.E.2d at 878. Neither
did MAI Software possess a power to control these aspects of Data Doctors' business.
Further, the MAI companies had no control over the manner in which Hubco and Data
Doctors conducted sales, performed installations, charged their customers, or dealt with their
employees. Id.
3

Another essential element of agency missing in this case is a fiduciary obligation on the
part of the alleged agents to act primarily for the benefit of [MAI] in matters connected with
[their] undertaking. Restatement (Second) of Agency 13 comment a. MAI sold computer
equipment to Hubco and Data Doctors who resold that equipment to the public. Title to the
goods and an obligation to pay a set price for them passed to the dealers as soon as MAI
delivered. The dealers set the price at which they then sold the MAI products to their
customers, and neither Hubco nor Data Doctors had any duty to account to MAI for prices
charged or profits received. All companies at all times acted independently and in their own
names.
In short, the only relationship which the evidence supports between the MAI companies
and the two distributors is that of seller and buyer. See Alvarez v. Fleker, 41 Cal.Rptr. 514,
522 (Cf.App. 1964). See also Restatement (Second) of Agency 14J.
[Headnote 2]
Hunter also argues that Hubco and Data Doctors had apparent authority to represent MAI
in their dealings with Hunter. This argument is without merit. The record reveals that Hunter
did not rely on any MAI representations of agency when entering into its contracts with
Hubco and Data Doctors. Absent a showing of third party reliance on some conduct of the
alleged principal, there can be no apparent agency. Ellis v. Nelson, 68 Nev. 410, 419, 233
P.2d 1074, 1076 (1951).
Neither Hubco nor Data Doctors had actual or apparent authority to create a contractual
relationship between MAI or MAI Software and Hunter or any other purchaser of Basic
Four computer goods.
____________________

3
With regard to employees, the agreements specifically provided that MAI and Hubco and MAI Software
and Data Doctors were to have no common employees and no common members of their respective
boards-of-directors.
104 Nev. 568, 572 (1988) Hunter Mining v. Management Assistance
Software and Hunter or any other purchaser of Basic Four computer goods. The MAI
dealership agreements with both parties specifically negated such authority; nothing else in
the parties' agreements or conduct contradicted those disclaimers.
The district court was justified in concluding that, as a matter of law, the relationship
between MAI and Hubco and MAI Software and Data Doctors was not that of principal and
agent, but rather that of seller and buyer.
The judgment notwithstanding the verdict is affirmed.
4

____________________

4
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 572, 572 (1988) Pappas v. State, Dep't Transp.
CAROL PAPPAS and MARY BARTSAS, Appellants, v. THE STATE OF NEVADA, on
Relation of Its Department of Transportation, Respondents.
No. 18391
October 26, 1988 763 P.2d 348
Appeal from final judgment in condemnation action. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
Landowners appealed an order of the district court which fixed the value of their property
in a condemnation action. The Supreme Court held that: (1) juror affidavits were inadmissible
to impeach verdict; (2) fact that jury attempted and failed to obtain clarification of instruction
did not constitute irregularity in jury proceedings; and (3) landowners had burden of proving
value of land.
Affirmed.
[Rehearing denied December 9, 1988]
Kermitt L. Waters, Las Vegas, for Appellants.
Brian McKay, Attorney General, Carson City; Dale E. Haley, Deputy Attorney General,
Las Vegas, for Respondents.
1. Eminent Domain.
Juror affidavits, describing jury's attempt to clarify instructions given in eminent domain action, were not
admissible to prove that jurors failed to obtain clarification on questioned jury instruction and therefore
came to an erroneous verdict.
2. Eminent Domain.
Facts that jurors knocked on jury room door and judge's secretary appeared, that juror told her that jury
had a question regarding an instruction, that secretary instructed juror to reduce question
to writing and informed jury that judge and attorneys were not presently available,
and that jury arrived at verdict without submitting written question to trial judge, did
not amount to irregularity in proceedings of jury in eminent domain action sufficient
to support a new trial.
104 Nev. 572, 573 (1988) Pappas v. State, Dep't Transp.
instruction, that secretary instructed juror to reduce question to writing and informed jury that judge and
attorneys were not presently available, and that jury arrived at verdict without submitting written question
to trial judge, did not amount to irregularity in proceedings of jury in eminent domain action sufficient to
support a new trial. NRCP 59.
3. Eminent Domain.
Landowner has burden of proving value of land subject to eminent domain action.
OPINION
Per Curiam:
Appellants Carol Pappas and Mary Bartsas (Landowners) owned 9.10 acres of land
which was the subject of an eminent domain action by the State of Nevada. A jury trial was
held to determine the fair market value of the property. The Landowners presented three
expert witnesses who presented appraisal values, each based upon a presumption that the land
would be zoned as entirely commercial property. In the opinions of the Landowners' experts
the property was worth $2,378,000.00 to $2,500,000.00.
The State called one expert appraiser who based his opinion upon valuing the land as
partially commercial and partially residential. He testified that the land's value was
$1,200,000.00. The opinion of the State's appraiser was supported by the testimony of a
County Commissioner and the Chief of County Planning who agreed that the land would not
be zoned entirely for commercial use due to the residential character of nearby property.
While deliberating upon a verdict, the jurors experienced confusion regarding the meaning
of part of the jury instructions. A question arose as to whether the jurors had to pick between
the highest and lowest appraisal value or whether they could pick one of the values in
between.
1
One of the jurors knocked upon the jury room door for assistance. The trial judge's
secretary appeared. She indicated that she could not answer the question and instructed the
jurors to reduce the question to writing. She also informed the jurors that neither the judge
nor the attorneys were available at that time.
Forty-five minutes later the jury had reached a verdict. The jurors' prior question was never
reduced to writing, nor presented to the trial judge.
____________________

1
The jury instruction which apparently gave rise to the confusion stated:
You must determine the fair market value of the subject property only from the opinions of the witnesses
who have been permitted by the Court to express their opinion [sic] of such market value. Thus you may
not find the market value of the subject property to be either less than or more than that testified to by the
witnesses who have been permitted to express their opinions on such matters.
104 Nev. 572, 574 (1988) Pappas v. State, Dep't Transp.
to the trial judge. The jury found that the proper value for the land was $1,200,000.00, the
lowest appraisal value entered into evidence. After the verdict was returned, counsel for the
Landowners requested that the jury be polled individually. All eight jurors assented to the
verdict.
The Landowners subsequently moved for an evidentiary hearing, and a new trial based
upon NRCP 59,
2
arguing that the interaction of the judge's secretary with the jurors during
deliberations constituted an irregularity in the proceedings of the jury. In support of that
motion the Landowners submitted the identical affidavits of four jurors. The affidavits
recounted the events that took place in the jury room, the jurors' interaction with the secretary,
and speculated that had the jurors' question been reduced to writing, the judge's response
would have opened a new area of inquiry which might have affected the outcome of the jury
deliberations. The Landowners' motion for a new trial was denied by the trial court. Now the
Landowners appeal that ruling.
The Landowners assert that the following errors occurred during the proceedings below:
(1) The trial court abused its discretion by refusing to grant the Landowners' motion for a new
trial; and (2) the trial court committed prejudicial error by instructing the jury that the
Landowners had the burden of proving, by a preponderance of the evidence, the market value
of the land. We do not find the Landowners' arguments persuasive, and accordingly, we
affirm the trial court's ruling.
The decision to grant or deny a motion for a new trial rests within the sound discretion of
the trial court and will not be disturbed on appeal absent palpable abuse. Southern Pac.
Transp. Co. v. Fitzgerald, 94 Nev. 241, 577 P.2d 1234 (1978). The Landowners' have failed
to show that any palpable abuse was committed by the trial court.
[Headnote 1]
This court has long held that, as a general rule, jurors will not be permitted to impeach
their own verdict. Weaver Bros., Ltd. v. Misskelley, 98 Nev. 232, 233, 645 P.2d 438, 439
(1982). By submitting the jurors' affidavits to the trial court, that is precisely what the
Landowners attempted to do. Through the affidavits, the Landowners sought to show that the
jurors failed to obtain clarification on the questioned jury instruction and therefore came
to an erroneous verdict.
____________________

2
NRCP 59 provides in pertinent part:
RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for
any of the following causes or grounds materially affecting the substantial rights of the aggrieved party:
(1) Irregularity in the proceedings of the court, jury, master, or adverse party. . . .
104 Nev. 572, 575 (1988) Pappas v. State, Dep't Transp.
cation on the questioned jury instruction and therefore came to an erroneous verdict.
This court has already ruled that juror affidavits are not properly admissible to support
such a theory. In Barker v. State, 95 Nev. 309, 594 P.2d 719 (1979), we held that while juror
affidavits may properly be admitted to show what physically transpired in the jury room, they
are inadmissible for proving the jurors' mental processes or the effects of alleged misconduct
upon jurors. Accordingly, the judge below may have properly considered the affidavits only
to the extent that they show the interaction between the jury and the secretary. The portion of
the affidavits which speculates as to what effect the unanswered question had upon the
outcome of the deliberation, or that the judge's clarification of the question may have
influenced the verdict, is inadmissible.
[Headnote 2]
Applying the rule laid out in Barker, the following facts supporting a new trial were
properly before the trial judge: That the jurors knocked upon the jury room door; that when
the judge's secretary appeared, a juror told her that they had a question regarding a jury
instruction; that the secretary instructed the juror to reduce the question to writing and
informed the jury that the judge and attorneys were not presently available; and that the jury
arrived at a verdict without submitting the written question to the trial judge. Based upon
such a showing, we hold that the trial judge was acting within his discretion in determining
that this conduct did not amount to an irregularity in the proceedings of the jury sufficient to
support a new trial under NRCP 59.
3

[Headnote 3]
The Landowners also contend that the trial court committed prejudicial error by instructing
the jury that the Landowners had the burden of proving, by a preponderance of the evidence,
the market value of the property that the State acquired. There is no error in this instruction.
In Nevada, the burden of proving the value of land subject to eminent domain action is upon
the landowner. State v. Pinson, 66 Nev. 227, 207 P.2d 1105 (1949); Mack v. State, 77 Nev.
422, 365 P.2d 1117 {1961); Andrews v. Kingsbury Gen. Improvement Dist., S4 Nev. SS
____________________

3
This is especially true since the jurors were never instructed that they must submit any questions regarding
the jury instructions to the trial judge for clarification. In light of this fact, the jury's course of conduct cannot be
said to amount to misbehavior.
The Landowners also argue that the secretary's indication to the jury that the judge was not presently
available dissuaded the jury from submitting its question to the judge and constituted an irregularity in the
proceedings. Again, this line of argument is non-persuasive, since it focuses on the effect of the secretary's
conduct upon the jurors' behavior. It is but another inquiry into the mental processes of the jury and thus violates
public policy. See Close v. Flanary, 77 Nev. 87, 114, 360 P.2d 259, 273 (1961).
104 Nev. 572, 576 (1988) Pappas v. State, Dep't Transp.
Mack v. State, 77 Nev. 422, 365 P.2d 1117 (1961); Andrews v. Kingsbury Gen. Improvement
Dist., 84 Nev. 88, 436 P.2d 813 (1968).
The Landowners suggest that Uniform Eminent Domain Code section 904 presents a more
fair and equitable way to allocate the burden of proof in an eminent domain case.
4
Although
the Landowners' argument favoring adoption of the Uniform Code section is well reasoned
and persuasive, such a statutory change must be instituted through the legislature, not the
court. This court's duty ends with deciding what the law is, and it must be left to the
legislature to make it what it ought to be. Vesey v. Benton, 13 Nev. 284 (1878). As the law
presently stands, the burden of proof remains upon the condemnee or landowner to prove the
value of the land taken. See State v. Pinson, 66 Nev. 227, 236, 207 P.2d 1105, 1109 (1949).
Because the given jury instruction accurately reflected the distribution of the burden of proof
as it currently exists in Nevada, we hold that no prejudicial error resulted from reading it to
the jury.
The final judgment of the trial court is affirmed. The Landowners' claim for costs on
appeal is denied.
5

____________________

4
Uniform Eminent Domain Code section 904 provides that [n]o party has the burden of proof on the issue
of the amount of compensation.

5
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 576, 576 (1988) Nevis v. Fidelity New York
THOMAS E. NEVIS, SAUNDRA L. NEVIS, SAMUEL A. NEVIS and MELINDA L.
NEVIS, Appellants, v. FIDELITY NEW YORK, F.A., Formerly Doing Business as
FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION, Respondent.
No. 18600
October 26, 1988 763 P.2d 345
Appeal from award of deficiency judgment following foreclosure sale. Second Judicial
District Court, Washoe County; Jerry C. Whitehead, Judge.
Provider of financing for construction project was granted deficiency judgment against
guarantors following foreclosure sale, by the district court. Guarantors appealed. The
Supreme Court held that: (1) power of attorney which did not contain power to guarantee was
insufficient to confer authority on agent to bind principals as guarantors; (2) judicial decision
holding that guarantors can be held liable only for difference between indebtedness and
fair market value of subject property would not be given retroactive effect to extent of
requiring that mortgagee file deficiency judgment within three months of the foreclosure
sale; and {3) evidence sustained determination that mortgagee was not negligent in loan
disbursement control or in inspection procedures used in connection with project.
104 Nev. 576, 577 (1988) Nevis v. Fidelity New York
guarantors can be held liable only for difference between indebtedness and fair market value
of subject property would not be given retroactive effect to extent of requiring that mortgagee
file deficiency judgment within three months of the foreclosure sale; and (3) evidence
sustained determination that mortgagee was not negligent in loan disbursement control or in
inspection procedures used in connection with project.
Reversed in part; affirmed in part.
Henderson & Nelson, Robert C. Vohl, and James M. Walsh, Reno, for Appellants.
Vargas & Bartlett and John P. Fowler, Reno, for Respondent.
1. Principal and Agent.
Agent lacked authority to execute guaranty on behalf of principals where power of attorney given to him
did not include power to guaranty and contracting party failed to investigate and verify agent's power to
execute guaranty.
2. Courts.
Decision holding that guarantors can be held liable only for difference between indebtedness and fair
market value of subject property would not be given retroactive effect to the extent of requiring compliance
with former statute requiring filing of deficiency judgment within three months of foreclosure sale;
prospective effect only would be given to overruling of judicial precedent involving construction of
procedural statute. NRS 40.455.
3. Negligence.
Evidence was sufficient to sustain finding that provider of financing for construction project was not
negligent in its loan disbursement control and inspection procedures.
OPINION
Per Curiam:
Appellants Thomas and Samuel Nevis are brothers who each owns 50 percent of the stock
in Doe Valley, Inc. Doe Valley, Inc. entered a joint venture, Country River, Ltd., to develop
real property in Elko, Nevada. Country River, Ltd. obtained loans, and Thomas Nevis signed
as guarantor of the loans for himself and as attorney-in-fact for Samuel, Saundra, and
Melinda Nevis. Appellants Saundra and Melinda Nevis are the wives of Thomas and Samuel,
respectively. Respondent Fidelity New York unknowingly disbursed loan proceeds for work
that was incomplete and for improvements that were not properly constructed. When the
project was funded out, it was incomplete, and the loans went into default.
104 Nev. 576, 578 (1988) Nevis v. Fidelity New York
Fidelity brought suit below against the Nevises as guarantors of the loans, and recovered
the difference between the fair market value of the property and the debt owed. The Nevises
received nothing on their counterclaim for negligent disbursement of the loan proceeds. The
Nevises appeal, claiming that (1) Thomas Nevis had no authority to act as attorney-in-fact for
Samuel, Saundra, and Melinda Nevis, (2) this court should retroactively apply First Interstate
Bank v. Shields, 102 Nev. 616, 730 P.2d 429 (1986), and (3) Fidelity breached its duty to
inspect the project and to distribute the loan proceeds with care.
GUARANTY
[Headnote 1]
Samuel, Melinda, and Saundra Nevis all signed identical power of attorney forms, listing
numerous acts for which they conveyed authority to Thomas Nevis. Notably, the list did not
include the power to guarantee. As a general rule, courts strictly construe a power of attorney
and hold that the instrument grants only those powers which are specified. 3 Am.Jr.2d,
Agency 31 (1986). However, the district court concluded that the powers of attorney were
legally sufficient to confer authority to bind Samuel, Melinda, and Saundra Nevis as
guarantors.
Courts recognize the serious obligation imposed upon a guarantor, and generally require
evidence of specific authorization before finding that an agent has authority to bind his
principal in a guaranty agreement. Chicago Title Ins. Co. v. Progressive Housing, 453 F.Supp.
1103, 1106 (D.Colo. 1978); 2A C.J.S., Agency 181 (1973). Furthermore, because general
powers of attorney have questionable validity insofar as they convey authority to execute a
guaranty, courts impose a duty on the contracting party to investigate and verify the authority.
General Overseas Films, Ltd. v. Robin Intern., Inc., 542 F.Supp. 684, 692 (S.D.N.Y. 1982);
Chicago Title Ins. Co., 453 F.Supp. at 1107-1108.
The extent of a power of attorney must be determined by the language employed in the
document aided by the situation of the parties and surrounding circumstances. Seigworth v.
State, 91 Nev. 536, 538, 539 P.2d 464, 465 (1975). In the present case, the powers of attorney
were not originally executed in connection with the Country River Project. Thus, any
authority conferred upon Thomas Nevis to act on behalf of the other appellants must derive
solely from the language contained in the powers of attorney. But the powers of attorney do
not grant Thomas Nevis the authority to bind Samuel, Melinda, and Saundra Nevis as
guarantors.
Moreover, Fidelity does not claim that it took any action to verify the power to execute a
guaranty. Rather, it contends that the Nevises took no steps to notify Fidelity of any
limitation on the general power of attorney.
104 Nev. 576, 579 (1988) Nevis v. Fidelity New York
the Nevises took no steps to notify Fidelity of any limitation on the general power of attorney.
Contrary to existing case law, this argument attempts to switch the burden of the parties.
Therefore, we reverse the trial court to the extent it held Samuel, Melinda, and Saundra Nevis
liable on the guaranty, and hold that Thomas Nevis lacked the authority to execute the
guaranty on behalf of the other appellants.
APPELLANTS' OTHER CLAIMS
[Headnote 2]
When Fidelity filed its complaint, controlling case law in Nevada provided that guarantors
did not receive the protection afforded obligors pursuant to NRS 40.451 et seq. Thomas v.
Valley Bank of Nevada, 97 Nev. 320, 322, 629 P.2d 1205, 1207 (1981); Manufacturers &
Traders Trust v. Dist. Ct., 94 Nev. 551, 555, 583 P.2d 444, 447 (1978). In other words, while
obligors of a note could be held liable only for the difference between the indebtedness and
the fair market value of the subject property, the guarantors of a note could be held liable for
the full amount of the indebtedness. Id. We overruled this precedent and extended identical
protection to guarantors and obligors. First Interstate Bank v. Shields, 102 Nev. 616, 730 P.2d
429 (1986).
Appellants contend that this court should apply Shields retroactively. Appellants received
the full substantive protection of NRS 40.455, since Fidelity recovered only the amount of
deficiency. However, appellants argue that Fidelity failed to file a deficiency judgment within
three months of the foreclosure sale as then required under the statute. But courts give
prospective effect to the overruling of a judicial precedent involving construction of a
procedural statute. See generally 20 Am.Jur.2d Courts 233 (1965); 21 C.J.S. Court 194
(1940). Therefore, we decline to give Shields retroactive effect to the extent of requiring
compliance with the three month filing provision.
[Headnote 3]
Appellants also contend that the district court erred in determining that Fidelity did not
breach a duty owed to them as guarantors to inspect the Elko property and only disburse
funds in proportion to the work completed. However, no evidence in the record shows that
Fidelity or its predecessor breached any duty owed the Nevises. Moreover, no evidence exists
that Fidelity's loan disbursements and inspections injured the Nevises. Rather, the district
court found that Country River, Ltd., by and through one of its general partners, Country
River, Inc., failed to use due care in the disbursement of the loan proceeds and in the
construction of some of the improvements.
104 Nev. 576, 580 (1988) Nevis v. Fidelity New York
Consequently, we need not consider the district court's alternative conclusion that NRS
41.590 bars recovery for damages caused by loan disbursements. Instead, we affirm the
district court's holding that Fidelity was not negligent in its loan disbursement control and
inspection procedures used in connection with the Country River Project.
For the reasons previously discussed, the judgment is reversed insofar as it held Samuel,
Melinda, and Saundra Nevis liable on the guaranty, and affirmed in all other respects.
1

____________________

1
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 580, 580 (1988) Scott v. Dep't of Commerce
HAROLD SCOTT and RUTH SCOTT, Appellants, v. DEPARTMENT OF COMMERCE, a
Political Subdivision of the STATE OF NEVADA, THE ADMINISTRATOR OF
FINANCIAL INSTITUTIONS OF THE STATE OF NEVADA, as Its Agent and Officer, and
THE STATE OF NEVADA, Respondents.
No. 17934
HAROLD SCOTT and RUTH SCOTT, Appellants, v. J. DEAN WILSON, E. F. MUELLER,
LINDA TUCCIARONE, and PATRICIA NASH, Respondents.
No. 18507
October 26, 1988 763 P.2d 341
Consolidated appeals from an order denying motion to amend complaint and dismissing
complaint with prejudice, and from an order dismissing the State of Nevada as a party
defendant. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Investors filed class action lawsuit against principals and agents of mortgage corporation
for fraud and intentional misrepresentation and against State of Nevada for alleged negligence
in regulation mortgage corporation. The district court granted state's motion to dismiss,
granted principals' and agents' motion for summary judgment with respect to class action, and
denied investor's motion to amend complaint to add cause of action for negligence against
principals and agents. Investors appealed. The Supreme Court held that: (1) state enjoyed
sovereign immunity from suit under discretionary function exception for activities involved
in regulating mortgage corporation; (2) investors did not have private cause of action
resulting from any breach of duty to public by state regulation of financial institutions; and
{3) refusal to permit investors to amend complaint, after statute of limitations had run, to
assert cause of action in negligence was not error.
104 Nev. 580, 581 (1988) Scott v. Dep't of Commerce
public by state regulation of financial institutions; and (3) refusal to permit investors to
amend complaint, after statute of limitations had run, to assert cause of action in negligence
was not error.
Affirmed.
LePome, Willick & Gorman, Las Vegas, for Appellants.
Brian McKay, Attorney General, J. Gregory Damm, Deputy Attorney General, and
Despina M. Hatton, Deputy Attorney General, Carson City, for Respondents Department of
Commerce, Administrator of Financial Institutions, and State of Nevada.
James J. Brown, Las Vegas, for Respondents E. F. Mueller and J. Dean Wilson.
Cohen, Lee & Johnson, Las Vegas, for Respondent Linda Tucciarone.
Carol Menninger, Las Vegas, for Respondent Patricia Nash.
Hale, Lane, Peek, Dennison & Howard and Victoria S. Mendoza, Reno, and Brobeck,
Phleger & Harrison and Anthony M. Dominic De Toro, Christina Ramona and Luther Kent
Orton, San Francisco, for Amicus Curiae Leroy R. Bergstrom.
1. States.
Federal precedents under discretionary function exception to Federal Tort Claims Act, are relevant in
interpreting Nevada's retention of its common-law sovereign immunity in all matters which involve
discretionary functions or duties on part of state or any of its agencies or political subdivisions. NRS
41.032, subd. 2; 28 U.S.C.A. 2680(a).
2. States.
Statutory regulation of mortgage companies constitutes exercise of discretionary function by state agency
for which it enjoys immunity. NRS 41.032.
3. States.
No action may be brought against state based on allegations of negligence or ineffective inspection,
supervision of regulation of mortgage companies; legislature's use of word shall in statutory scheme
indicates mandatory requirement that regulatory program be implemented, but commissioner retains
considerable discretion in administration of program, and thus discretionary function exception to waiver
of immunity applies to performance of statutory functions. NRS 41.032.
4. States.
Mortgage company investors did not have cause of action against state by reason of legislature's
determination that public interest is served by state regulation of mortgage companies or by operation of
regulatory program.
104 Nev. 580, 582 (1988) Scott v. Dep't of Commerce
5. Limitation of Actions.
Refusal to allow mortgage company investors to amend their fraud complaint, after statute of limitations
had run, to allege new cause action in negligence was not error where cause of action in negligence
required pleading of different factual allegations and preparation of substantially different defense than
original action; earlier allegations did not provide mortgage company, its principals and agents with
requisite notice of negligence claim. NRCP 15(c).
OPINION
Per Curiam:
These are consolidated appeals by investors in Imperial Mortgage Corporation, a
state-regulated mortgage company, from the district court's denial of claims against Imperial's
principals and agents and against the State of Nevada. Pursuant to an order of this court,
Leroy Bergstrom, the trustee in bankruptcy for J. Stephen Lemons and Associates, another
Nevada mortgage company, filed briefs as amicus curiae. For the reasons stated below, we
find no error in the district court's judgments and hereby affirm those judgments.
On March 3, 1986, the last possible day under the applicable statute of limitations,
appellants Harold and Ruth Scott (the Scotts) filed a lawsuit in the form of a class action
against principals and agents of Imperial Mortgage Corporation and against the State of
Nevada. The Scotts alleged in their complaint that financial losses in their investments with
Imperial Mortgage Corporation were due to fraud and intentional misrepresentations by
principals and agents of Imperial Mortgage Corporation. They also sought to hold the State of
Nevada liable for their losses, alleging that the losses were caused by the State's negligent
regulation of Imperial Mortgage Corporation. After a hearing, the district court, on October
27, 1986, granted the State's motion to dismiss. The case proceeded below under a new
docket number after dismissal of the State.
On June 9, 1987, the district court entered an order granting respondent Wilson's motion
for summary judgment with respect to the class action, granting the remaining defendants'
joinder in Wilson's motion, and denying the Scotts' motion to confirm class under NRCP 23.
The Scotts moved to amend their complaint to add a cause of action for negligence. The
motion was opposed, and on August 10, 1987, the district court entered an order denying the
motion. We have consolidated the Scotts' separate appeals from the district court's order
dismissing the State as a defendant and from its order granting summary judgment.
The Scotts first challenge the district court's dismissal of this action with respect to the
State. They contend that NRS Chapter 645B, the statutory scheme regulating mortgage
companies, imposes upon the State an affirmative duty to regulate and investigate
mortgage companies so as to prevent losses to investors such as the Scotts, that the State
did not do so, and that the State is thus liable for the Scotts' losses.
104 Nev. 580, 583 (1988) Scott v. Dep't of Commerce
645B, the statutory scheme regulating mortgage companies, imposes upon the State an
affirmative duty to regulate and investigate mortgage companies so as to prevent losses to
investors such as the Scotts, that the State did not do so, and that the State is thus liable for
the Scotts' losses.
In particular, the Scotts contend that the commissioner
1
of financial institutions had a
duty to inspect mortgage companies and to insure that mortgage companies operated only if
they were eligible for licensing. Nevada statute provides that the commissioner shall . . .
[c]onduct such examinations and investigations as are necessary to ensure that mortgage
companies meet the requirements of this chapter for obtaining a license . . . on a continuing
basis. NRS 645B.060(2)(e). The grounds for refusing to license or for suspending the license
of a mortgage company include fraud, misrepresentation and poor financial condition. See
NRS 645B.100. The Scotts contend that under these provisions, once the State was informed
that Imperial was falsely and fraudulently representing itself as solvent, the State had a duty
to investigate and to insure that Imperial operated only if it was eligible for licensing. The
Scotts further contend that the legislature's use of the word shall in NRS 645B.060(2)
indicates that conducting appropriate investigations and ensuring that mortgage companies
meet licensing requirements at all times is a mandatory duty admitting no discretion.
Therefore, the Scotts maintain, that duty is not subject to the discretionary function exception
to the State of Nevada's waiver of sovereign immunity. See NRS 41.032(2). We disagree with
these contentions.
Under NRS 41.032(2), the State of Nevada has retained its common law sovereign
immunity in all matters which involve a discretionary function or duty on the part of the
state or any of its agencies or political subdivisions or of any officer, employee or immune
contractor of any of these, whether or not the discretion involved is abused. The provisions
of NRS Chapter 645B clearly give the commissioner discretion in the application of his
specialized knowledge and judgment to the regulation of mortgage companies.
[Headnote 1]
Furthermore, the NRS 41.032(2) exception to waiver of sovereign immunity is practically
identical to 28 U.S.C. 2680(a), the discretionary function exception in the Federal Tort
Claims Act. Therefore, federal precedents are relevant to our interpretation of NRS 41.032(2).
See Hagbloom v. State Dir. of Motor Vehicles, 93 Nev. 599
____________________

1
The 1987 amendments to this chapter substituted commissioner [of financial institutions] for
administrator [of financial institutions] throughout the chapter.
104 Nev. 580, 584 (1988) Scott v. Dep't of Commerce
93 Nev. 599, 571 P.2d 1172 (1977); Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94
(1970). Federal courts have consistently held that federal regulatory authorities are not subject
to liability for claims based on allegations of ineffective or inadequate regulation of financial
institutions.
For example, in Emch v. United States, 630 F.2d 523 (7th Cir. 1980), cert. denied, 450
U.S. 966 (1981), the court held that under the discretionary function exception to the Federal
Tort Claims Act, federal bank regulation agencies are immune from the claims of a
stockholder in a bank whose stock became worthless when the bank was declared insolvent.
The court reasoned that claims against regulating agencies for failing to anticipate the bank's
difficulties and for failing to insure the bank officers' honesty and competence were of the
type which [28 U.S.C.] section 2680(a) was designed to preclude. . . . Id. at 528-29. In
Huntington Towers, Ltd. v. Franklin Nat. Bank, 559 F.2d 863 (2d Cir. 1977), cert. denied sub
nom, Huntington Towers, Ltd. v. Federal Reserve Bank of New York 434 U.S. 1012 (1978),
the court held the government immune under the discretionary function exception from
claims for a borrower's losses that occurred when the bank was declared insolvent. The court
stated that determining the point at which a bank is no longer able to meet its obligations as
they fall due involves a substantial amount of discretion. Id. at 870. The court in Federal
Deposit Ins. Corp. v. Jennings, 615 F.Supp. 465 (W.D.Okla. 1985), aff'd, 816 F.2d 1488
(10th Cir. 1987), dismissed claims against the government, holding that the decision to
liquidate rather than revive a bank was discretionary. The court in Davis v. Federal Deposit
Insurance Corporation, 369 F.Supp. 277 (D.Colo. 1974), dismissed depositors' claims based
on the FDIC's failure to make public facts concerning the bank's condition. The court held
that decisions to terminate a bank's insured status or to issue a cease and desist order were
discretionary and that the FDIC had no duty to advise the public of the bank's condition.
State agencies regulating financial institutions have also been held immune from suit or
claims similar to those of the instant case. In Nordbrock v. State, 395 N.W.2d 872 (Iowa
1986), the Iowa Supreme Court held that under that state's discretionary function exception to
the waiver of sovereign immunity, Iowa bank regulators were immune from suits alleging
negligence in the examination and supervision of banks.
[Headnotes 2, 3]
In accord with these authorities, we conclude that the regulation of mortgage companies
under NRS Chapter 645B constitutes an exercise of the state agency's discretionary
function.
104 Nev. 580, 585 (1988) Scott v. Dep't of Commerce
an exercise of the state agency's discretionary function. Therefore, pursuant to NRS 41.032,
no action can be brought against the State based on allegations of negligent or ineffective
inspection, supervision or regulation of mortgage companies. The legislature's use of the
word shall in the statutory scheme indicates a mandatory requirement that the regulatory
program be implemented, but the commissioner retains considerable discretion in the
administration of the program. The discretionary function exception applies to the
commissioner's and the regulatory authority's performance of their functions under the statute.
Accordingly, the district court correctly dismissed the State of Nevada from this case.
[Headnote 4]
In addition, we have previously held that when a governmental duty runs to the public, no
private cause of action is created by a breach of such duty. See Whalen v. County of Clark, 96
Nev. 559, 613 P.2d 407 (1980); Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151, 591
P.2d 254 (1979). This rule applies to the regulation of financial institutions. Federal bank
regulators do not owe individual persons or institutions a duty under their power to examine
and supervise banks. See, e.g., First State Bank of Hudson County v. U.S., 599 F.2d 558 (3d
Cir. 1979), cert. denied, 444 U.S. 1013 (1980); Harmsen v. Smith, 586 F.2d 156 (9th Cir.
1978); In re Franklin Nat. Bank Sec. Litigation, 478 F.Supp. 210 (E.D.N.Y. 1979). State
regulatory agencies were held to have no duty to protect individual investors in Baerlein v.
State, 595 P.2d 930, 931-32 (Wash. 1979), and purchasers of time share housing units in
Hayes v. Nagata, 730 P.2d 914 (Haw. 1986). We agree with the following reasoning of the
Kentucky Supreme Court, expressed in its opinion denying claims against the Kentucky
Department of Banking and Securities for alleged failures to ascertain and report the
condition of state-regulated savings associations:
When the governmental entity is performing a self-imposed protective function as it
was in the case at hand, the individual citizen has no right to demand recourse against it
though he is injured by its failure to efficiently perform such function. Any ruling to the
contrary would tend to constitute the Commonwealth an insurer of the quality of
services its many agents perform and serve only to stifle government's attempts to
provide needed services to the public which could not otherwise be effectively
supplied.
. . . We perceived that the public interest is better served by a government which can
aggressively seek to identify and meet the current needs of the citizenry, uninhibited by
the threat of financial loss should its good faith efforts provide less than optimalor
even desirableresults.
104 Nev. 580, 586 (1988) Scott v. Dep't of Commerce
threat of financial loss should its good faith efforts provide less than optimalor even
desirableresults.
Com., Dept. of Banking & Securities v. Brown, 605 S.W.2d 497, 499 (Ky. 1980). No cause
of action by mortgage company investors against the State of Nevada was created by the
legislature's determination that the public interest is served by state regulation of mortgage
companies or by operation of the regulatory program.
[Headnote 5]
Second, the Scotts argue that the district court erred in denying their motion to amend their
complaint to allege a cause of action for negligence rather than intentional fraud. The Scotts
filed their complaint on the last possible day under the statutory limitations. They argue that,
under NRCP 15(c),
2
the proposed amended complaint should relate back to the original
complaint, even though their theory of liability had changed, because the proposed amended
complaint alleged the same facts as the original complaint and the defendants had adequate
notice of the fact situation underlying the Scotts' claims.
We have expressed the standard for NRCP 15(c) relation back as follows:
If the original pleadings give fair notice of the fact situation from which the new claim
for liability arises, the amendment should relate back for limitations purposes.
On the other hand, where an amendment states a new cause of action that describes a
new and entirely different source of damages, the amendment does not relate back, as
the opposing party has not been put on notice concerning the facts in issue.
Nelson v. City of Las Vegas, 99 Nev. 548, 556, 665 P.2d 1141, 1146 (1983) (citations
omitted). In Nelson, we upheld the district court's refusal to allow a plaintiff who had alleged
intentional infliction of emotional distress to add a battery cause of action after the statute of
limitations had run because the defendant had received no notice of the battery claim in the
earlier pleadings. Id. at 557, 665 P.2d at 1146. The instant case presents a similar situation. A
cause of action in negligence requires the pleading of different factual allegations and the
preparation of a substantially different defense than an action alleging fraud and intentional
misrepresentation. The Scotts' complaint provided respondents with no notice to defend
against an action alleging negligence.
____________________

2
NRCP 15(c) provides: Whenever the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading.
104 Nev. 580, 587 (1988) Scott v. Dep't of Commerce
with no notice to defend against an action alleging negligence. We see no error in the district
court's refusal to allow the Scotts, after the statute of limitations had run, to amend their
complaint to allege a new cause of action in negligence.
In December of 1987, respondent Wilson filed a motion to dismiss this appeal as to him
pursuant to NRAP 3 because he was not served with notice of the appeal. The Scotts opposed
the motion but admitted failing to serve Wilson. This court deferred disposition of Wilson's
motion. Under our decision in this case, respondent Wilson suffered no prejudice by the
Scotts' failure to serve him with proper notice of this appeal. Accordingly, we deny Wilson's
motion to dismiss under NRAP 3. For the reasons stated above, the district court's judgments
are affirmed.
____________
104 Nev. 587, 587 (1988) Ainsworth v. Combined Ins. Co.
THOMAS AINSWORTH, Appellant, v. COMBINED
INSURANCE COMPANY OF AMERICA, Respondent.
No. 17625
October 26, 1988 763 P.2d 673
Appeal from a Judgment Notwithstanding the Verdict, Second Judicial District Court,
Washoe County; Deborah A. Agosti, Judge.
Appeal was taken from judgment notwithstanding the verdict entered in the district court
eliminating award of punitive damages against insurer in amount of almost $6,000,000. The
Supreme Court, Gunderson, C. J., held that: (1) award of punitive damages was justified, and
(2) award of almost $6,000,000 was not excessive.
Reversed.
[Rehearing denied May 19, 1989]
Peter Chase Neumann, Reno; Bradley & Drendel, Reno, for Appellants.
Mortimer, Sourwine, Mousel, Sloane & Knobel, Reno; Lionel, Sawyer & Collins, and M.
Kristina Pickering and Steve Morris, Las Vegas, for Respondent.
Lambrose, FitzSimmons & Perkins, Carson City, for Amicus Curiae.
1. Insurance.
Circumstances surrounding insurer's denial of coverage under accident policies after insured suffered
stroke as result of accident which occurred during administration of angiogram established
"oppression" on part of insurer and justified statutory award of punitive damages;
although initial medical report hypothesized that stroke might have been caused by
disruption of arterial plaque which had developed, triggering policies' disease
exclusion, subsequent reports clearly indicated that stroke was result of accident
rather than of disease, and insurer steadfastly refused to recognize such fact and only
offered to settle claim for fraction of amount that should have been available.
104 Nev. 587, 588 (1988) Ainsworth v. Combined Ins. Co.
occurred during administration of angiogram established oppression on part of insurer and justified
statutory award of punitive damages; although initial medical report hypothesized that stroke might have
been caused by disruption of arterial plaque which had developed, triggering policies' disease exclusion,
subsequent reports clearly indicated that stroke was result of accident rather than of disease, and insurer
steadfastly refused to recognize such fact and only offered to settle claim for fraction of amount that should
have been available. NRS 42.010.
2. Insurance.
Relationship of insured to insurer is one of special confidence, and insurer is under duty to negotiate with
insured in good faith and to deal with insured fairly.
3. Insurance.
Insurer may not rely on its own ambiguous contract as sole basis for denial of coverage.
4. Insurance.
Punitive damages award of almost $6,000,000 against insurer or its failure to provide coverage under
accident policies was not excessive; award was only five percent of insurer's annual net operating gain and
only .4 percent of insurer's total assets for year, insurer denied coverage under policies' disease exclusion
despite medical evidence showing that disease did not give rise to claim, and, as result of accident giving
rise to claim, insured's wife was forced to take on task of attempting to obtain coverage for her husband.
NRS 42.010.
5. Damages.
Wealth of defendant is directly relevant to size of punitive damages award, which is meant to deter
defendant from repeating misconduct as well as punish him for past behavior.
OPINION
By the Court, Gunderson, C. J.:
On January 14, 1982, Thomas Ainsworth was a healthy, working man who also served his
community as a member of the Sparks City Council. His only health concerns involved
occasional dizzy spells, which he had experienced at irregular intervals over a period of
several years. Within twenty-four hours, Thomas Ainsworth's life was shattered. Because of
an accident which occurred during the administration of an angiogram, Thomas suffered a
stroke. He immediately went into a coma, which continued for seven days. He was still 100
percent disabled after six months. The stroke did not kill him, but some of its effects are
permanent and devastating. He will never walk or talk as well as he previously did.
While Thomas was fighting for his life, his wife, Evelyn Ainsworth, was fighting a
different battle. She attempted to collect benefits for Thomas under two accident policies
issued by respondent, Combined Insurance Company of America (Combined). The
Ainsworths had been advised by agents of Combined that their accident policies would
protect them in the event of "any conceivable accident."
104 Nev. 587, 589 (1988) Ainsworth v. Combined Ins. Co.
that their accident policies would protect them in the event of any conceivable accident.
Relying on this promise, and the advice of Thomas' physician, Evelyn sent in an accident
claim.
The insurance adjuster who received the claim denied it immediately, without any
investigation whatsoever, because the doctor's report hypothesized that the stroke may have
been caused by the disruption of atheromatous plaque during the angiogram. The adjuster
focused upon this one sentence in the report, and concluded that the development of arterial
plaque had contributed to Thomas' stroke. Since the policy excluded any accident which was
contributed to by disease, Combined refused to pay benefits under the policies. These benefits
amounted to $9,600.
Evelyn was distressed by the denial, but decided to resubmit the claim on advice from her
nephew, who was a physician, and from the Combined salesman who came by in June to
collect the next biannual premium. Combined's salesman discussed the Ainsworths' financial
condition with Evelyn, and encouraged her to resubmit her claim. He even promised to put a
hold on the premium check while the matter was cleared up.
The claim was resubmitted, along with a doctor's report which corrected the earlier
hypothesis. The doctor stated that the results of the angiogram clearly showed that Thomas'
blood vessels were normal and were not built up with atheromatous plaque. He affirmed that
the stoke was entirely accidental, and could have resulted from numerous causes.
At this time, Combined sent its file to its medical consultant, Dr. Goldfinger. The
consultant was provided, however, only with the first doctor's report and records from
Washoe Medical Center, where Thomas had been transferred after the accident. The
consultant's one-line report stated that the stroke was the result of disease. After receiving the
consultant's report, Combined again denied the claim, without evaluating the second doctor's
report or the record summaries from the Veterans Administration Hospital, where the
accident occurred. Combined never made further inquiry into the claim, never telephoned or
wrote to the doctors, and never obtained a copy of the operating report or the angiogram.
In November, 1982, Evelyn submitted Thomas' claim for the third time, accompanied by
yet another doctor's report explaining that Thomas had been the victim of an accident. By this
time, the claim file included more records from the V.A. Hospital. The file was sent to Dr.
Goldfinger for a second evaluation, but on the same day Combined sent Evelyn a third denial
letter. Two days later, Dr. Goldfinger again recommended denying the claim, because the
angiogram had been ordered for the purpose of diagnosing Thomas' dizzy spells. Thus,
according to Goldfinger, the loss was not purely accidental.
104 Nev. 587, 590 (1988) Ainsworth v. Combined Ins. Co.
In a further effort to obtain the badly-needed policy benefits, Evelyn submitted the claim
for the fourth time in February, 1983. With her claim she included a letter from her husband's
doctor which confirmed that the angiogram revealed no pre-existing vascular disease. In
response to this claim, Combined offered to compromise by paying the Ainsworths $1,940
in exchange for a release of all claims. Evelyn understandably refused this offer, and wrote a
fifth letter, requesting payment of the full benefits under the two policies, a total of $9,600.
Combined still refused to pay.
The Ainsworths then sued Combined, seeking the payment of benefits and compensatory
and punitive damages. The jury awarded the benefits, $200,000 in compensatory damages,
and $5,939,500 in punitive damages. Combined moved for a judgment notwithstanding the
verdict and for a new trial. The district court denied the latter motion, but granted the former,
totally eliminating the award of punitive damages. For the reasons expressed in this opinion,
we reverse the judgment of the district court and reinstate the jury's verdict. The denial of the
motion for new trial is affirmed.
SUBSTANTIAL EVIDENCE
[Headnote 1]
The function of this court in evaluating a grant of judgment notwithstanding the verdict is
to determine whether the jury's verdict is supported by substantial evidence. The party
favored by a verdict is entitled to have the evidence interpreted in the manner most favorable
to him, and gains the benefit of every inference of fact fairly deducible from the evidence.
Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 686 P.2d 925 (1984); Dudley v. Prima, 84
Nev. 549, 445 P.2d 31 (1968). Judgment notwithstanding the verdict is inappropriate when
there is any substantial evidence to support that verdict. Jacobson v. Manfredi, 100 Nev. 226,
679 P.2d 251 (1984).
A jury may award punitive damages where the defendant has been guilty of fraud, malice,
or oppression. NRS 42.010. We conclude that the punitive damages award in this case is
supported by substantial evidence of oppression on the part of the defendant, Combined.
Therefore, we reverse the decision of the district court.
Oppression has been defined as a conscious disregard for the rights of others which
constitute[s] an act of subjecting plaintiffs to cruel and unjust hardship. Roth v. Shell Oil
Company, 185 Cal.App. 2d 676, 682 (Cal.App. 1960); accord Jeep Corp. v. Murray, 101
Nev. 640, 650, 708 P.2d 297 304 (1985). Our decisions have recognized that such a
conscious disregard may support an award of punitive damages.
104 Nev. 587, 591 (1988) Ainsworth v. Combined Ins. Co.
support an award of punitive damages. Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d
234 (1976); Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). The
Ainsworths presented substantial evidence that Combined had consciously and deliberately
ignored their rights to the payment of benefits.
The initial claim was denied immediately without any investigation, although Combined
claimed in its letter that it had been given careful consideration. In fact, Combined made no
independent inquiry concerning Thomas' accident, whether by telephone or letter. The sum
total of its investigative effort was to send a $5 check to each of two hospitals, accompanied
by a records request form. This effort was clearly inadequate to support Combined's assertion
that it handled the claim properly. Furthermore, we are not impressed by Combined's alleged
lack of knowledge concerning the Ainsworths' precarious finances. From the outset,
Combined knew that Thomas Ainsworth was a 59-year old male who had suffered a stroke
and was comatose for seven days. This information was more than adequate to give
Combined notice that its insured, who had paid premiums for 13 years, had an unqualified
and urgent need for the benefits of the accident policies. Additionally, five times within 18
months, the insured's wife requested payment, indicating clearly that the policy benefits of
$9,600 were urgently needed.
Combined's cumulative response to the next three claim submissions was also sadly
inadequate. In spite of the seriousness of the accident, Combined failed to obtain accurate and
complete medical records. Although it used the services of a medical consultant, the
consultant was not provided with adequate information. When Evelyn sent additional medical
reports, these were initially ignored because Combined's employees felt they merely repeated
the statements contained in the initial report. After further consideration of the reports and a
second outside consultation, Combined continued to deny the claim simply because the
angiogram was ordered as a diagnostic tool. We fail to understand why an accident cannot
occur during the administration of a medical test. The stroke was an unplanned and
unexpected result of the angiogram. The fact that Thomas underwent the procedure on the
orders of his doctor is irrelevant. If Thomas had been hit by a truck on his way to doctor's
office, the accident would not be the result of a disease, in spite of the fact that Thomas was
engaged in seeking medical treatment at the time.
Combined's obstinate and unjustified refusal to pay, in our opinion, constitutes oppression
as contemplated by the statute. The evidence establishes that the Ainsworths were in
desperate need of funds, and that Combined had reason to know of their dire circumstances.
The record clearly supports an inference that Combined consciously disregarded the rights
of its insured by clinging to its restrictive definition of "accident" as used in its policy.
104 Nev. 587, 592 (1988) Ainsworth v. Combined Ins. Co.
Combined consciously disregarded the rights of its insured by clinging to its restrictive
definition of accident as used in its policy.
This intransigent resistance is remarkable in light of the written inducements offered to
obtain renewal premiums from Thomas and Evelyn Ainsworth. As stated above, they had
carried insurance with Combined since 1969. At trial, documents were introduced which
showed that Combined sent good news letters to its insureds, assuring them they were
covered in the event of any conceivable accident, incurred in any activity whatsoever.
When the salesman arrived to collect the premiums, he reminded the Ainsworths of the
benefits they were receiving, as explained in the news letters. In fact, the salesman's manual
defined accident simply as an event that is unforeseen [sic.] and unexpected. Given such
information, the Ainsworths could reasonably expect that an unforeseeable, unexpected
accident which occurred as a result of a medical test would be covered by their policy. See
National Union Fire Ins. v. Reno's Exec. Air, 100 Nev. 360, 682 P.2d 1380 (1984); Catania v.
State Farm Life Ins. Co., 95 Nev. 532, 598 P.2d 631 (1979).
[Headnotes 2, 3]
The relationship of an insured to an insurer is one of special confidence. A consumer buys
insurance for security, protection, and peace of mind. Rawlings v. Apodaca, 726 P.2d 565
(Ariz. 1986) (en banc). The insurer is under a duty to negotiate with its insureds in good faith
and to deal with them fairly.
1
The insurer may not rely on its own ambiguous contract as the
sole basis for denial. Rawlings, supra, at 572, see also Sullivan v. Dairyland Ins. Co., 98 Nev.
364, 649 P.2d 1357 (1982). To allow such conduct would only encourage ambiguous
contracts. Indeed, our law has held that any ambiguity will be construed against the insurance
company, and rightly so. N. American Life & Cas. Co. v. Gingrich, 91 Nev. 491, 538 P.2d
163 (1975). Negotiations between a wealthy, sophisticated commercial venturer and a naive
consumer cannot be of equal strength. For that reason, the law attempts to render an
ambiguous contract fair by making the drafter responsible for ambiguity. The insurance
industry is heavily regulated by the state, because it is an important public trust. Along with
the profits obtained from insurance premiums, insurers must accept the obligations of good
faith and fair dealing imposed by law.
____________________

1
The covenant of good faith and fair dealing is implied into every commercial contract. NRS 104.1203. In
Nevada, insurance contracts are directly regulated by statutes which prohibit deceptive advertising and other
unfair trade practices. See NRS 686A.010; 686A.030(1); 686A.040; 686A.310(1)(b), (c), (e), and (f).
104 Nev. 587, 593 (1988) Ainsworth v. Combined Ins. Co.
Furthermore, even if the evidence is not sufficient to prove that Combined acted
oppressively in avoiding the payment of benefits, we note that in the past we have found
malice in fact when the defendant has engaged in wilful and intentional conduct, done in
reckless disregard of its possible results, Nevada Cement, supra, 89 Nev. at 451, 514 P.2d at
1183; Nevada National Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978). Combined's conduct
was neither accidental nor simply negligent. In spite of five requests made in 18 months, in
spite of the serious nature of its insured's accident, it conducted no independent investigation
and utterly failed to evaluate fairly the medical evidence it possessed in its claim file.
Therefore, we conclude that the jury's award of punitive damages was supported by
substantial evidence.
PUNITIVE DAMAGES
[Headnote 4]
Traditionally this court has held that the amount of a punitive damages award was
subjective, and therefore best left to the jury's determination. Phillips v. Lynch, 101 Nev. 311,
704 P.2d 1083 (1985); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). Recently we
have attempted to define the allowable limits of punitive damages in a more objective
fashion. Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). Ace Truck described several
factors which contribute to an appellate evaluation of a punitive damages award. We
conclude, however, that none of these factors prevent us from affirming the award in this
case.
[Headnote 5]
First, we note that the financial position of the defendant is still relevant to the
determination of the amount of the punitive damages award. The 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. See Midwest Supply, Inc. v.
Waters, 89 Nev. 210, 510 P.2d 876 (1973). We note that the award in this case, while large,
amounts to only 5 percent of Combined's 1985 net operating gain. The award constitutes only
.4 percent of Combined's 1985 total assets. Since we find its business conduct totally
unacceptable, we are reluctant to disturb the jury's determination that a sizeable award is
necessary to deter Combined from pursuing its inappropriate methods.
Second, we conclude that the culpability and blameworthiness of Combined is
considerable, with few mitigating circumstances. Despite repeated requests by the insured, all
of which were accompanied by medical reports, Combined failed to investigate the claim
properly.
104 Nev. 587, 594 (1988) Ainsworth v. Combined Ins. Co.
accompanied by medical reports, Combined failed to investigate the claim properly. It refused
to pay on the basis of one inaccuracy in the initial report, an inaccuracy which was corrected
by three later reports. Combined must take full responsibility for the handling of the claim,
and its own obstinate refusal to take more appropriate action.
Third, we look to the vulnerability of, and injury suffered by, the offended party. Thomas
Ainsworth was in a highly vulnerable position as the result of the devastating consequences
of his stroke. Unable to communicate effectively, he depended on the efforts of his wife, a
woman who was inexperienced in handling business matters. Sufficient evidence was
produced at trial to show that Thomas was permanently impaired in his speaking ability by
the lack of crucial funds to pay for speech therapy at the proper time during his recovery.
Thomas' injuries prompted the jury to make a substantial award of compensatory damages.
These injuries also support an award of punitive damages.
Another factor is the offensiveness of the punished conduct when compared to societal
values of justice and propriety. As discussed above, insurance is a special kind of commercial
activity. The insurer is under a duty to treat its policyholders fairly. The obstinate, unjustified
refusal to pay a legitimate claim is offensive to society, precisely because the consumer pays
for insurance to gain security and peace of mind.
Finally, we must evaluate the means judged necessary to deter future misconduct.
Combined is a very large, wealthy insurance company which sends its agents out among the
innocent citizenry, selling policies door-to-door. Its policyholders are not sophisticated
commercial investors; they are ordinary citizens who hope to protect themselves from future
calamities. If Combined is to be deterred from its past course of conduct, this can only be
done through an assessment of punitive damages. In order to accomplish this purpose, the
amount awarded must be sufficient to cause the defendant real concern. We cannot say that
an assessment of .4 percent of the respondent's total assets is unwarranted under the
circumstances of this case. The award does not shock our judicial conscience, and it is not
clearly excessive.
2
Hale v. Riverboat Casino, Inc., 100 Nev. 299, 682 P.2d 190 (1984).
Other contentions have been considered and are deemed to be totally without merit. We
therefore reinstate the jury's verdict.
____________________

2
Appellant is not entitled to interest on the punitive damages award. See Ramada Inns v. Sharp, 101 Nev.
824, 711 P.2d 1 (1985). We understand that the policy benefits and compensatory damages have already We
reverse the grant of judgment been paid. Therefore, no interest is awarded by this decision.
104 Nev. 587, 595 (1988) Ainsworth v. Combined Ins. Co.
We reverse the grant of judgment notwithstanding the verdict, and affirm the denial of
respondent's motion for a new trial.
Steffen, Young, Springer, and Mowbray, JJ. concur.
____________
104 Nev. 595, 595 (1988) Meyer v. Estate of Frances Swain
BOB MEYER AND THE ESTATE OF CRAIG CURTIS, Appellants, v. ESTATE OF
FRANCES SWAIN, CARL SWAIN, Individually and as Heir at Law of FRANCES SWAIN,
KATHLEEN D. MERS, as Guardian ad Litem for CARL J. SWAIN, and CATHERINE I.
SWAIN, Minors and Heirs at Law of FRANCES SWAIN, Respondents.
No. 18280
October 26, 1988 763 P.2d 337
Appeal from a judgment, entered on a jury verdict, in a civil action arising out of a
motorcycle-pedestrian collision. Second Judicial District Court, Washoe County; Jerry C.
Whitehead, Judge.
During negligence trial arising out of motorcycle-pedestrian accident, a jury before the
district court found motorcycle driver completely at fault and pedestrian not negligent. On
appeal the Supreme Court held that: (1) lack of jury instruction on pedestrian's negligence
was prejudicial, and (2) as matter of law pedestrian was contributorily negligent to a certain
degree.
Reversed.
Perry, Hebert & Spann, and John A. Furlong, Reno, for Appellant Bob Meyer.
Thorndal, Backus & Maupin, and Stephen C. Balkenbush, Reno, for Appellant Estate of
Craig Curtis.
Robison, Belaustegui and Robb, Reno, for Respondents.
1. Appeal and Error; Automobiles.
Motorcycle driver was entitled to jury instruction on pedestrian's negligence by being within traveled
portion of highway while possibly intoxicated during negligence trial arising out of motorcycle-pedestrian
accident and failure to grant that instruction was prejudicial; at time of accident, statutes forbade
intoxicated persons from being on highway, testimony indicated that pedestrian's blood-alcohol level at
time of accident was between .05 percent and .06 percent, and evidence demonstrated that pedestrian had
been drinking prior to the accident. NRS 484.379.
104 Nev. 595, 596 (1988) Meyer v. Estate of Frances Swain
2. Automobiles.
Pedestrian was contributorily negligent to a certain degree as matter of law for fatal accident between
herself and motorcycle; pedestrian jaywalked across a public road on very dark night with back to
oncoming traffic and while possibly intoxicated and was struck by motorcycle traveling with its lights on
and within its right of way. NRS 484.379.
OPINION
Per Curiam:
Appellant Craig Curtis and respondent Frances Swain died as a result of injuries sustained
in a motorcycle-pedestrian collision. A jury determined that Curtis was entirely responsible
for the collision and that Swain was fault free. Because the trial court erred in refusing to
instruct the jury on Swain's statutory duty as a pedestrian to remain off the highway while
intoxicated while at the same time giving a comparable instruction on the unlawfulness of
Curtis's driving while under the influence and because the evidence clearly shows that
Swain's negligence, in some degree, contributed to the collision that caused her death, we
reverse the judgment of the trial court.
[Headnote 1]
The focal error, the central unfairness in this case, lies in the trial court's giving of an
instruction that Curtis's intoxication rendered him negligent as a matter of law, while refusing
to give a corresponding instruction relating to Swain's intoxication. There was evidence at the
trial that both Curtis and Swain had been drinking prior to the fatal collision. Swain requested
and was granted an instruction on the unlawfulness of Curtis's use of alcohol. That
instruction, given at the request of the Swains, reads:
There was in force at the time of the occurrence in question, a Nevada statute which
makes it unlawful for any person who has a 0.10% or more by weight of alcohol in his
blood to drive a motorcycle on a public highway. The statute further provides that it is
unlawful for any person who is an habitual user of or under the influence of any
controlled substance, or is under the combined influence of intoxicating liquor and a
controlled substance to drive a motorcycle on a public highway.
A comparable instruction based on NRS 484.379 was requested by Curtis and Meyer, one
which read as follows:
There was in force at the time of the occurrence in question laws which read in
relevant part as follows: It is unlawful for any pedestrian who is under the influence
of intoxicating liquors to be within the traveled portion of any highway.
104 Nev. 595, 597 (1988) Meyer v. Estate of Frances Swain
It is unlawful for any pedestrian who is under the influence of intoxicating liquors to be
within the traveled portion of any highway.
This instruction was refused.
It is well established that a party is entitled to have the jury instructed on all of his theories
that are supported by the evidence. See Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983).
In reviewing the propriety of the trial court's refusing to give the instruction on pedestrian
intoxication, the relevant inquiry is simply whether there was evidence adduced at trial to
support the theory underlying the instruction. Rather clearly, such evidence was adduced at
the trial.
We note initially that for the purposes of criminal prosecutions for driving under the
influence of intoxicating liquor, NRS 484.381(2)(b) provides that while a defendant who has
a blood-alcohol content of between .05 and .10 percent is not presumed to be under the
influence of intoxicating liquor, nevertheless, this fact may be considered with other
competent evidence in determining the guilt or innocence of the defendant. NRS
484.381(2)(b). The evidence in this case shows that Frances Swain's blood-alcohol content
was between .05 and .10 percent. There was testimony by the investigating police officer that
Swain's blood-alcohol level at the time the accident occurred was possibly as high as .068.
Swain's measured blood-alcohol level of .05, taken over an hour after the accident, would
indicate that her blood-alcohol must have exceeded the .05 level to some degree at the time
the accident occurred.
1
This evidence, in combination with competent evidence that Swain
had been drinking wine prior to the accident, clearly supports Curtis's and Meyer's theory that
Swain was negligent as a matter of law by virtue of being an intoxicated pedestrian in the
traveled portion of a highway.
[Headnote 2]
The instruction relative to Swain's statutory duty as a pedestrian to remain off the highway
while intoxicated should have been given by the trial court. It was error not to do so. Having
found such error, our next task is to determine whether the error was prejudicial, requiring
reversal. We hold that it was.
As will be seen from the recounting of the facts that follows, it is highly probable, if not
inescapable, that Frances Swain was in some way responsible for the motorcycle-pedestrian
collision. Thus, the jury's finding that Swain was 0% negligent leads us to look for an
explanation from some source other than her conduct on the evening in question.
____________________

1
Medical records show that Frances Swain lived for approximately twenty-five minutes after the accident,
and we know that there was some metabolic activity and dissipation of alcohol during this time.
104 Nev. 595, 598 (1988) Meyer v. Estate of Frances Swain
conduct on the evening in question. One readily available explanation is that the jury was not
told that it was just as unlawful for Swain to be walking on the highway while under the
influence of liquor as it was for Curtis to be driving under the influence. Had the jury been
told Swain's intoxication had the same legal effect and carried the same unlawfulness as
Curtis's, it probably would not have reached its flawed conclusion that Swain was free of
negligence. We are satisfied that the refusal of the trial court to give the requested parallel
instruction was not only error, but prejudicial error that, to a high degree of probability,
affected the outcome of this case insofar as the issue of comparative negligence is concerned,
namely the jury's conclusion that Swain was zero percent negligent.
Aside from the specific error discussed above, we further hold that the jury's attribution of
one-hundred percent negligence to Curtis and zero percent negligence to Swain is not only
irrational but manifestly unjust. In our jurisprudence, manifest injustice is present when a
verdict strikes the mind, at first blush, as manifestly and palpably contrary to the evidence.'
Kroeger Properties v. Silver State Title, 102 Nev. 112, 715 P.2d 1328 (1986). That Frances
Swain was in no way at fault, in no way negligently responsible for her own death, is palpably
contrary to the evidence, which we now examine.
At the time Swain was struck by Curtis's motorcycle, she was jaywalking across a public
road on a very dark night with her back to oncoming traffic. The motorcyclist had the right of
way. Swain had been drinking wine, and more than one hour after the accident she still had
0.05 percent alcohol in her blood. The investigating police officer testified as to the joint
responsibility of the parties for the accident, and when asked what factors he saw as
contributing to the accident, he told the jury: The drinking on the part of both parties, and
the fact that the pedestrian was crossing at an area not designated for pedestrian traffic.
There is strong evidence that Swain was not being prudently attentive to vehicular traffic
as she jaywalked across the highway in the manner stated. In crossing the highway Swain had
the duty to look in the direction or directions of anticipated danger, and to continue to be
alert to safeguard against injury.' Fennell v. Miller, 94 Nev. 528, 531, 583 P.2d 455, 457
(1978). It can be claimed that Swain looked carefully in both directions before starting to
cross the highway and that she continued to be alert to traffic as she proceeded across the
highway, but this is extremely improbable. She and her husband Carl crossed the highway
together. Carl testified that he did not remember either stopping or looking before entering
the road, although he said it would have been unusual for them not to have done so.
104 Nev. 595, 599 (1988) Meyer v. Estate of Frances Swain
have been unusual for them not to have done so. The couple crossed the road obliquely with
their backs, to some degree at least, exposed to traffic traveling in the direction Curtis was
traveling. Neither of the Swains saw the motorcycle, which from all indications had its
headlight on, before it struck Frances Swain. It is difficult indeed to conclude that under these
circumstances Frances Swain was not in some degree negligent in her lack of attentiveness
alone, without even considering the negligence inherent in night time jaywalking with one's
back to oncoming traffic.
As it appears from the record that Swain must in some degree, however slight, have fallen
below the recognized standard of due care under the circumstances, so also it appears that
Curtis could not be reasonably said to have been solely and totally at fault for the accident.
There is some evidence that Curtis was traveling under the speed limit; there is other
evidence that he might have exceeded the speed limit. Whether he or Mrs. Swain were
hampered in their judgment or perception by alcohol is arguable either way. Evidence to
show that Curtis was using drugs the day of the accident is also in conflict. When Curtis's
blood-alcohol test was given, no drug test was administered. Taking all of this in the light
most favorable to the Swains, the jury certainly could have found that Curtis's judgment and
perception were more impaired than Swain's because of the jury's belief that Curtis had used
drugs on the day of the accident. Even though the jury could have believed that Curtis had
been using drugs, there is no direct evidence that his operation of the motorcycle was
impaired at the time the accident occurred. Swain was jaywalking and did not have the right
of way; she had her back to oncoming traffic, and probably she was not paying required
attention to the dangers of oncoming traffic. Curtis, on the other hand, was proceeding along
his own side of the road, with his headlight on. He may or may not have been exceeding the
speed limit when he struck a pedestrian. Curtis had a right to believe that the pedestrian
would not be violating his right of way by placing herself illegally in the path of his
oncoming motorcycle.
A detached reader of this record might conclude that Swain, not Curtis, was the more
negligent party, but it is extremely doubtful that an impartial reviewer of this case could come
to the conclusion that Curtis was entirely at fault and that Swain was not in any way a
negligent contributor to her own tragic death. When studying this record we cannot help but
come to the conclusion that no rational fact finder could have completely absolved Swain
from fault in this case. Even if we give the most extravagant advantage to Swain in every
interpretation of the facts, we cannot say that her jaywalking, her walking with her back to
oncoming traffic on a black "tunnel-like" night, her probable inattention to traffic and her
possible impairment by alcohol had absolutely nothing to do with the collision on that
night.
104 Nev. 595, 600 (1988) Meyer v. Estate of Frances Swain
say that her jaywalking, her walking with her back to oncoming traffic on a black
tunnel-like night, her probable inattention to traffic and her possible impairment by alcohol
had absolutely nothing to do with the collision on that night. The investigating officer
probably had it right: There was mutual fault, and drinking by both parties coupled with
Frances's illegal jaywalking were the principal factors contributing to the accident.
We reverse the judgment on the basis of prejudicial error in instructing the jury. We
simply cannot conclude, on this record, that the jury, properly instructed, would have
determined that the decedent's conduct failed in some degree to contribute to her death. The
judgment of the trial court is reversed and remanded to the trial court for retrial.
____________
104 Nev. 600, 600 (1988) Sheriff v. Jacobson
ELKO COUNTY SHERIFF, JAMES G. MILLER, Appellant, v. RONALD CHARLES
JACOBSON, JR., and TAMARA SUE HORVAT, aka TAMARA SUE SINGH,
Respondents.
No. 18727
October 27, 1988 763 P.2d 356
Appeal from order granting pretrial petitions for writs of habeas corpus. Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
Defendants convicted of narcotics charges filed a petition for writ of habeas corpus. The
district court granted the writs, and the state appealed. The Supreme Court held that the Board
of Pharmacy had insufficient grounds to designate phenylacetic acid as a schedule III
controlled substance solely because the substance was a precursor to another compound that
the Board had already designated as an immediate precursor of a controlled substance.
Affirmed.
Brian McKay, Attorney General, Carson City; Mark D. Torvinen, District Attorney, Elko,
for Appellant.
Gary D. Woodbury, Elko, for Respondent Ronald Charles Jacobson.
Frederick B. Lee, Public Defender, Elko, for Respondent Tamara Sue Horvat, a.k.a.
Tamara Sue Singh.
104 Nev. 600, 601 (1988) Sheriff v. Jacobson
Drugs and Narcotics.
Nevada Board of Pharmacy improperly classified phenylacetic acid as a schedule III controlled substance
solely because that substance was a precursor to another compound that the Board had already designated
as an immediate precursor of a controlled substance. NRS 453.166-453.206.
OPINION
Per Curiam:
Respondent Ronald Charles Jacobson (Jacobson) was charged by information with one
count of possession of methylamine, a schedule III controlled substance, and one count of
possession of phenylacetic acid (PAA), another schedule III controlled substance, both
felonies. The information also charged respondent Tamara Sue Horvat (Horvat) with one
count of possession of PAA, and one count of possession of methamphetamine, both felonies.
Horvat was also charged with one count of carrying a concealed weapon, a gross
misdemeanor. The district court granted respondents' pretrial petitions for writs of habeas
corpus. For the reasons set forth below, we affirm the order of the district court.
At respondents' preliminary hearing, Mark Williams, a criminal investigator employed by
the State of Nevada, testified that on September 25, 1987, he received a telephone call from
the Federal Drug Enforcement Administration (DEA) offices in Salt lake City. The DEA
informed Williams that they had a couple under surveillance in Utah, and that the couple had
just purchased three barrels of methylamine and four barrels of PAA from a chemical supply
house in Orem, Utah. The DEA also told Williams that the couple was traveling in two
vehicles, described the vehicles and advised Williams of the quantities of methylamine and
PAA believed to be in each vehicle. Finally, the DEA informed Williams that the couple was
westbound on Interstate 80, apparently headed for California. After receiving this
information, Williams drove to Wendover, Utah, and awaited the arrival of the DEA agents.
Williams observed respondents driving through Wendover, Utah to Wendover, Nevada.
Soon after respondents entered Nevada, they were arrested by state authorities. Jacobson was
driving a car and towing a U-Haul trailer. A subsequent search of the trailer revealed three
metal barrels containing methylamine and two cardboard barrels containing PAA. Horvat was
arrested inside the Peppermill Casino in Wendover. A search of the Chevrolet Blazer that she
was observed parking outside the casino revealed two barrels of PAA. The search also
revealed a film canister containing a small quantity of methamphetamine, and hypodermic
equipment.
104 Nev. 600, 602 (1988) Sheriff v. Jacobson
and hypodermic equipment. Finally, a .22 caliber handgun was removed from Horvat's purse.
Richard Smith (Smith), a criminalist employed by the Washoe County Sheriff's
Department, testified at the preliminary hearing that PAA and methylamine are commonly
used in the manufacture of methamphetamine. He also stated, however, that both chemicals
have legitimate uses.
1
Smith further testified that to make methamphetamine, PAA must be
chemically altered to form another substance called phenyl-2-propanone (P2P). The P2P is
then mixed with other chemicals to form methamphetamine. Finally, Smith testified that
neither methylamine nor PAA in their unprocessed state is commonly abused by drug users.
Indeed, Smith testified that both chemicals, by themselves, are toxic.
In their pretrial petitions for writs of habeas corpus, respondents contended, among other
things, that PAA was not properly classified as a controlled substance in Nevada. The district
court agreed with this argument and dismissed the charges in the information relating to
respondents' possession of the PAA. This appeal followed.
Substances become controlled substances when they are placed on any one of five
schedules. See generally NRS 453.166-453.206 (setting forth the criteria for inclusion of
substances within each schedule). These schedules were formerly set out by statute. In 1981,
the legislature empowered the Board of Pharmacy (Board) to designate, by regulation, the
substances to be contained in each schedule. See NRS 453.146(1). Thus, the legislature made
certain that the schedules would be kept current as new substances are developed. See Sheriff
v. Luqman, 101 Nev. 149, 152, 697 P.2d 107 (1985). The Board's power to designate
controlled substances is not unlimited; the legislature directed that when the Board considers
controlling a substance, it must weigh the following factors:
(a) The actual or relative potential for abuse;
(b) The scientific evidence of its pharmacological effect, if known;
(c) The state of current scientific knowledge regarding the substance;
(d) The history and current pattern of abuse;
(e) The scope, duration and significance of abuse;
(f) The risk to the public health;
(g) The potential of the substance to produce psychic or physiological dependence
liability; and {h) Whether the substance is an immediate precursor of a controlled
substance.
____________________

1
In particular, Smith stated that methylamine is commonly used in the tanning process. This court's own
research reveals that PAA is commonly used in the manufacture of penicillin and certain perfumes. See Random
House Dictionary of the English Language 1453 (2d ed. unabridged 1987).
104 Nev. 600, 603 (1988) Sheriff v. Jacobson
(h) Whether the substance is an immediate precursor of a controlled substance.
NRS 453.146(2). The legislative scheme also prohibits the Board from controlling a
substance solely because it is a precursor to a compound already designated by the Board as
an immediate precursor of a controlled substance. See NRS 453.146(4).
2

In 1984, the Board, responding to the request of federal drug agents and other law
enforcement authorities, held hearings on a proposed regulation which designated PAA and
four other compounds as schedule III controlled substances. At the close of those hearings,
the Board determined that the compounds specified in the proposed regulation have a
potential for abuse associated with the preparation of controlled substances. Consequently,
the Board designated those compounds as schedule III controlled substances. See NAC
453.530(7).
3

We note that PAA must be chemically altered to form another substance, P2P, which is
then combined with other chemicals to form methamphetamine. The Board previously
classified P2P as an immediate precursor to methamphetamine and thus designated P2P as a
schedule II controlled substance. See NAC 453.520(7). Appellant conceded at oral argument
that when the Board designated PAA as a controlled substance, it controlled a precursor to
an immediate precursor."
____________________

2
NRS 453.146(4) provides:
If the board designates a substance as an immediate precursor, substances which are precursors of the
controlled precursor are not subject to control solely because they are precursors of the controlled
precursor.
NRS 453.086 defines the term immediate precursor and provides:
Immediate precursor means a substance which the board has found to be and by regulation designates
as being the principal compound commonly used or produced primarily for use, and which is an
immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance
the control of which is necessary to prevent, curtail or limit manufacture.

3
NAC 453.530 provides in pertinent part:
1. The controlled substances listed in this section are included in schedule III.
. . .
7. Unless listed in another schedule, the following substances having a potential for abuse associated
with the preparation of controlled substances:
(a) Phenylacetic acid;
(b) Methylamine;
(c) Anthranillic acid;
(d) L-Ephedrine; and
(e) DL-Ephedrine except that any combination or compound containing Ephedrine, or any of its salts
or isomers, which is prepared for over-the-counter sale is not a controlled substance for the purpose of
this section.
104 Nev. 600, 604 (1988) Sheriff v. Jacobson
an immediate precursor. Appellant also conceded at oral argument that PAA is not
designated as a controlled substance by the federal government, or by the states of Utah or
California. Significantly, this court is not aware of any jurisdiction other than Nevada that has
designated PAA as a controlled substance. Nevertheless, appellant asserts that the Board
properly designated PAA as a controlled substance because that compound has a potential
for abuse, i.e. the manufacture of controlled substances. Appellant notes that a substance's
potential for abuse is properly considered by the Board when it determines whether or not a
substance will be designated a controlled substance in this state. See NRS 453.146(2)(a),
supra. Because the Board did not classify PAA as a controlled substance solely because it
is a precursor of P2P, appellant argues that the Board properly designated PAA as a
controlled substance. See NRS 453.146(4), quoted at note 2, supra. We disagree.
As previously discussed, the Board scheduled PAA as a controlled substance because that
substance has a potential for abuse. The potential for abuse that the Board recognized
was the role of PAA in the manufacture of controlled substances. NRS 453.146(4), however,
clearly provides that the Board may not control a substance solely because that substance is a
precursor to another compound that the Board has already designated as an immediate
precursor of a controlled substance. It is undisputed that the role of PAA in the preparation
of controlled substances is as a precursor to P2P, a compound which the Board has already
designated and controlled as an immediate precursor of methamphetamine. Under these
circumstances, we conclude that without other, compelling reasons to designate PAA as a
controlled substance, insufficient grounds existed for the Board to control that compound. See
NRS 453.146(4). To hold otherwise would nullify the legislative purpose in enacting NRS
453.146(4), i.e., to prevent the Board from controlling compounds that have legitimate
commercial uses. Indeed, if this court upheld the regulation challenged in this case, a danger
would exist that criminal liability could be imposed for the interstate transportation of PAA
for legitimate commercial purposes. Specifically, an individual could legally purchase PAA
in another state with the intent of using the substance legitimately in California. If that
individual transported the PAA through Nevada while enroute to California, however, the
individual's conduct would become felonious. The possibility of such an absurd result
demonstrates that the classification of PAA as a controlled substance was inappropriate.
Thus, we conclude that the Board exceeded its authority in classifying PAA as a controlled
substance. Accordingly, we affirm the order of the district court granting appellants' pretrial
petition for writs of habeas corpus.4
104 Nev. 600, 605 (1988) Sheriff v. Jacobson
court granting appellants' pretrial petition for writs of habeas corpus.
4

Gunderson, C. J., Young, Springer, and Mowbray, JJ., and Whitehead, D. J., concur.
____________________

4
The Honorable Thomas L. Steffen, Justice, voluntarily disqualified himself from consideration of this
appeal. The Governor designated The Honorable Jerry C. Whitehead, District Judge, to participate in this
appeal. Nev. Const. Art. VI, 4.
____________
104 Nev. 605, 605 (1988) Heim v. Heim
LORETTA STEVENS HEIM, Appellant/Cross-Respondent, v. DWIGHT HEIM,
Respondent/Cross-Appellant.
No. 18240
October 28, 1988 763 P.2d 678
Appeal and cross-appeal from the district court's award of alimony and division of
property in a divorce proceeding. Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Divorce decree was entered by the district court and wife appealed. The supreme Court,
Springer, J., held that award of only $500.00 per month alimony was not just and equitable
under the circumstances.
Appealed affirmed in part; reversed and remanded for new trial on the issue of
alimony; cross-appeal dismissed.
Lynn R. Shoen, Las Vegas, for Appellant/Cross-Respondent.
Greenman, Goldberg & Raby, and Gabriel A. Martinez, Las Vegas, for
Respondent/Cross-Appellant.
1. Divorce.
Statutory requirement that awards be just and equitable applies to awards of alimony as well as to
property disposition. NRS 125.150, subd. 1.
2. Divorce.
The Buchanan guidelines with respect to alimony awards are simply an inexhaustive list of common
sense considerations, and it is not enough for courts to steadfastly consider the items on the list; court, in
making decision in alimony and property matters, must form a judgment as to what is equitable and just,
having regard to the respective merits of the parties and to the condition in which they will be left by the
divorce. NRS 125.150, subd. 1.
104 Nev. 605, 606 (1988) Heim v. Heim
3. Divorce.
Award of only $500.00 per month permanent alimony was not equitable and just, and award should not
necessarily be limited to the $1,500.00 per month prayed for by wife, where husband earned $5,600 per
month while fifty-seven year old wife, by agreement of the parties, did not pursue employment during the
marriage, and husband had acquired Ph.D. during the thirty-five year marriage. NRS 125.150, subd. 1.
OPINION
By the Court, Springer, J.:
This is an appeal by a divorced wife who claims that the trial court abused its discretion in
awarding her only $500.00 per month alimony under the following circumstances:
(a) a marriage of thirty-five years;
(b) a marriage during which, by agreement of the parties, the did not pursue her own
employment or career so that she could remain at home as a homemaker and raise the
parties' six children;
(c) a marriage during which the husband pursued his own professional advancement,
earned a Ph.D. and achieved his present academic position as chairman of the
Computer Science and Electrical Engineering Department at the University of
Nevada-Las Vegas;
(d) a marriage in which the marital property, consisting of a small ($10,000.00)
equity in a house, household furniture and personal property, a 1982 Buick, a 1984
Plymouth, and a retirement fund, has been equitably divided;
1
{e) a husband who
earns $5,600.00 per month and who, by his affidavit, has living expenses of less
than $2,000.00 per month;
____________________

1
We assume for purposes of this appeal that the property has been fairly disposed of because the wife has not
appealed the property disposition in the divorce decree. The cars, the personal property, insurance and
retirement funds were divided equally. The wife was given the house. The husband testified that he would give
or take $10,000.00 for the house, which is run-down and located in a very dangerous neighborhood in Detroit.
This is probably a fair valuation.
The husband took their life-savings with him when he left Detroit and went to Las Vegas. The wife testified
that she and her husband had approximately $17,000.00 in a money market account in the Michigan National
Bank, $5,000.00 in a checking account in the same bank, around $7,000.00 in two paychecks negotiated and
kept by her husband and some money in the husband's credit union account. All in all, the wife claims that about
$30,000.00 went to Las Vegas with her husband. The husband admits to taking only about $10,000.00, and the
rest is not very well accounted for. Setting off the husband's admittedly taken $10,000.00 in cash against the
wife's $10,000.00 in the house would give us an equal property distribution (if it were not for the missing
$20,000.00). Whether the trial judge took this $20,000.00 into account when he awarded $500.00 per month
alimony, we
104 Nev. 605, 607 (1988) Heim v. Heim
(e) a husband who earns $5,600.00 per month and who, by his affidavit, has living
expenses of less than $2,000.00 per month;
(f) a wife who is fifty-seven years old, who has no professional skills, who is
unemployed and who never has been able to earn any more than $600.00 per month;
and
(g) a wife who, after the divorce, has no appreciable assets other than a 1982 Buick,
a mortgaged house in Detroit and a future interest in half of her husband's University of
Michigan retirement benefits. (The record does not disclose the amount or conditions of
the wife's share in these future benefits. She received nothing at the present time.)
Under these circumstances we must agree with Loretta Heim: the trial court did abuse its
discretion in making this award. The sum of $500.00 per month until death or remarriage is
not, as a matter of law, just and equitable under the circumstances of this case. Before the
appellate court will interfere with the trial judge's disposition of the community property of
the parties or an alimony award, it must appear on the entire record in the case that the
discretion of the trial judge has been abused. Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753,
755 (1968). Because the trial court has abused its discretion in this regard, we reverse and
remand for new trial on the issue of alimony.
[Headnote 1]
Alimony is wholly a creature of statute. Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d
264, 265 (1963). In 1861 the Legislative Assembly of the Territory of Nevada authorized the
court to award support for a wife as shall be deemed just and equitable. Laws of the
Territory of Nevada ch. 33, sec. 27, at 99 (1861) (our emphasis). In 1939 the state legislature
passed an amendment to the territorial act which stated that in granting a divorce, the court
may award such alimony to the wife and shall make such disposition of the community and
separate property of the parties as shall appear just and equitable. 1939 Nev. Stats. ch. 25, at
18 (our emphasis).
The present day statute, NRS 125.150(1),
2
contains the same just and equitable
language. Although it could be argued syntactically that the quoted language relates only
to property division, we interpret the statute to mean that, since 1S61, alimony awards
must in this jurisdiction be "just and equitable.
____________________
do not know; but it does not appear from the size of the alimony award that any advantage was given to the wife
in this regard.
The husband has cross-appealed, claiming that the wife's being awarded the home resulted in a
disproportionate division of the property. Such a position cannot possibly be sustained under the
circumstances of this case.

2
NRS 125.150(1) reads as follows:
1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified
periodic payments; and
104 Nev. 605, 608 (1988) Heim v. Heim
syntactically that the quoted language relates only to property division, we interpret the
statute to mean that, since 1861, alimony awards must in this jurisdiction be just and
equitable.
3
Furthermore, as required by NRS 125.150(1), the award must be fairly related to
the respective merits of the parties and to the condition in which they will be left by the
divorce.
The legislative standard was accepted and properly restated in Krick v. Krick, 76 Nev. 52,
59, 348 P.2d 752, 755 (1960). It was correctly noted in Krick that NRS 125.150(1) authorizes
the trial court to award such alimony (and property) as shall appear equitable and just,
having regard to the respective merits of the parties and to the condition in which they will be
left by such divorce.
[Headnote 2]
Although the rule to be applied in making alimony awards is properly stated in Krick, the
court in Krick had no need to apply the rule to any specific decision regarding alimony;
therefore, it is not instructive on the question before us now. Since Krick, our cases seem to
have ignored the legislative standard and, instead, adopted a formulary approach in which we
have simply listed matters to be considered by the trial court in judging these matters. An
example of this matters-to-be-considered approach can be found in Johnson v. Steel, Inc., 94
Nev. 483, 486, 581 P.2d 860, 862 (1978), where we failed to mention the general statutory
principles and instead focused on the limits to their [the trial courts'] discretion, which we
defined in terms of the trial courts' being required to follow certain guidelines or matters
to be considered, which were borrowed from a previous case, Buchanan v. Buchanan, 90
Nev. 209, 523 P.2d 1 (1974). The so-called Buchanan guidelines are simply an
inexhaustive list of such common sense considerations as the financial condition of the
parties {property, income, relative earning capacity), duration of the marriage, age and
health of the parties and, strangely, "the contribution of each to any property held by
them as tenants by the entirety" {a form of tenancy unknown to the jurisprudence of this
state).
____________________
(b) Shall make such disposition of:
(1) The community property of the parties; and
(2) Any property placed in joint tenancy by the parties on or after July 1, 1979,
as appears just and equitable, having regard to the respective merits of the parties and to the condition in
which they will be left by the divorce, and to the party through whom the property was acquired, and to
the burdens, if any, imposed upon it, for the benefit of the children.

3
We note that in the present form of the statute, codified in NRS 125.150(1), the two subsections relating to
alimony and property distribution are separated by a semicolon, and the language above-quoted could be
arguably read to apply only to the property disposition clause. Because, as originally enacted, the language in
question clearly applied to both alimony and property awards, and because there is no clear legislative intent to
exclude such guidelines from alimony cases, we accept just and equitable as the fundamental principle by
which the courts must, in the last analysis, judge alimony awards.
104 Nev. 605, 609 (1988) Heim v. Heim
financial condition of the parties (property, income, relative earning capacity), duration of the
marriage, age and health of the parties and, strangely, the contribution of each to any
property held by them as tenants by the entirety (a form of tenancy unknown to the
jurisprudence of this state). Buchanan, 90 Nev. at 215, 523 P.2d at 5.
It would be very easy for readers of the Johnson-Buchanan type of case to conclude that an
alimony or property disposition decision can be properly made by courts within the limits of
their discretion simply by steadfastly considering the items on the Johnson-Buchanan check
list. But the statute requires more than this. The judge must, in making a decision in alimony
and property matters, form a judgment as to what is equitable and just, having regard to the
respective merits of the parties and to the condition in which they will be left by the divorce.
[Headnote 3]
Applying the stated legislative standard to this case we readily determine that $500.00 per
month does not appear equitable and just, having regard to the respective merits of the
parties and to the condition in which they will be left by such divorce. Krick, 76 Nev. at 59,
348 P.2d at 755.
We begin our analysis by looking at the condition in which these parties are to be left by
the divorce or, more particularly, at their relative financial worth and earning capacities.
The husband earns $5,600.00 per month and is required by the alimony decree to pay
something less than nine percent of this to his wife of thirty-five years. He may deduct the
$500.00 from his income tax; she must pay income tax on the $500.00. After paying alimony
and living expenses he appears to have $3,000.00 left over each month.
The wife is unemployed, but even if we were to assume that she will soon start to earn the
$600.00 per month that she was able to earn from time to time in the past, she will have an
income of only $1,100.00 per month, alimony included. Without a job she is close to the
recognized poverty level.
4
Even if her income amounts to $1,100.00 per month, she will
have an income of one-fifth that of her husband.
In sum, the financial condition in which the parties are left is this: the husband, after
paying tax-deductible alimony, will have $3,000.00 per month income after living expenses,
while the wife's financial condition after divorce appears almost certain to result in
deprivation, poverty and social degradation.
____________________

4
Poverty level for Mrs. Heim is $5,701.00, U.S. Dept. of Commerce, 1988 Statistical Abstract of the United
States 406 (108th ed.).
104 Nev. 605, 610 (1988) Heim v. Heim
Analyzing the respective merits of the parties mentioned in the statute is difficult in this
case as we know little or nothing about the actions or behavior of the parties. Merits may
refer to the good marital behavior or to the fault of the parties.
5

When examining the merits of the parties the courts might look at the parties' good
actions or good behavior or lack thereof in determining what either husband or wife justly
deserves. Here the record is silent on issues of the good or bad actions of the parties during
the marriage, as well as on issues relating to who instigated the dissolution; accordingly,
merit in this sense, not having been brought to the attention of the trial court, will not be
considered on this appeal.
6

Finally, as we must, we look to the overall justice and equity that must inform all alimony
and property distribution decrees. As suggested above, what is just and equitable as an
alimony award, broadly speaking, can be translated into terms of what is fair and what
Loretta deserves under the circumstances of the case. We have said before that parties in
divorce actions must be treated fairly. The trial court's objective is that of fairness, which it
achieves by the judge's personal observation of the parties and the evaluation of the
circumstances as they come before him in the arena of the trial court. Winn v. Winn, 86
Nev. 18, 20, 467 P.2d 601, 602 (1970). To determine what is fair, just and equitable one has
to look not only to the relative financial condition of the parties and to where they will be
left by the divorce, but also to all of the circumstances of the marriageits duration, the
age and health of the parties, the special agreements and understandings of the parties
and the past relations, conduct and status of the parties.
____________________

5
According to the Legal Thesaurus, by W. Burton (MacMillan, 1980), merit can be equated to desert or
deservedness. What a person deserves is of course related to what is just and equitable. The Legal Thesaurus
also equates the word merit to good actions, good behavior, goodness, greatness, honor, thereby raising the
subject of relative fault, which is dealt with in footnote 6.

6
Although Nevada has made incompatibility a ground for divorce and has eliminated the fault concept in
establishing grounds for divorce, it has neglected to deal with the question of whether fault should play a role in
deciding questions relating to alimony.
Nevada is not alone in this regard; and when the question has been presented to the courts in other states,
some have held that in the absence of legislative change corresponding to the enactment of no-fault grounds for
divorce, fault should continue to be a factor in awarding alimony or property distribution. Other courts have held
that permitting fault to be considered in these situations would be incompatible with the no-fault divorce statutes.
See e.g., Annotation, Fault in Consideration of Alimony Award, 86 A.L.R.3d 1117 (1978); Does No-Fault
Divorce Portend No-Fault Alimony, 34 U.Pitt.L.Rev. 486 (1973). Since this issue has not been raised at the trial
court level, we do not consider its application here; still, we note, without deciding the point, that the past
relations and conduct of the parties might be legitimately considered under the legislative direction that the
courts pay regard to the respective merit of the parties.
104 Nev. 605, 611 (1988) Heim v. Heim
by the divorce, but also to all of the circumstances of the marriageits duration, the age and
health of the parties, the special agreements and understandings of the parties and the past
relations, conduct and status of the parties. In the present case, one can give little
consideration to general principles of justice, equity, deserts and fairness without being struck
by the enormous disparity in the status and quality of life of the two marital partners that is
brought about largely by the paltry amount of alimony awarded to her by the trial court. See
Orr v. Orr, 458 So.2d 362 (Fla.Dist.Ct.App. 1984). It is quite obvious that Dr. Heim leaves
the divorce with almost everything and Mrs. Heim with almost nothing. By everything we
mean principally Dr. Heim's present capacity (a capacity gained by him through the long-term
efforts of both parties) to hold a prestigious position and command a large salary. Rather
clearly, the single most valuable product of the Heims' enterprise in the marital partnership is
the Ph.D degree and the high level of professional employability which were gained by Dr.
Heim during the marriage.
There are those who would argue that Dr. Heim carried with him, out of the marriage and
out of the reach of Mrs. Heim, a species of property sometimes referred to as a career asset.
7
Whether Dr. Heim's professional degree and present high earning capacity can be
considered to be a form of divisible property need not be considered in this case because the
issue was not raised below and because, as indicated, property distribution issues are not a
part of Loretta Heim's appeal. Nevertheless, in considering the basic principles of equity and
justice that must be applied in this case, it must be borne in mind that Dr. Heim leaves the
marriage with a Ph.D. acquired during the marital partnership and the capacity to earn
$67,000.00 per year, while Loretta Heim leaves with virtually nothing. As put rather
acerbically in one case, divorces should not become a handy vehicle for the summary
disposal of old and used wives. A woman is not a breeding cow to be nurtured during her
years of fecundity, then conveniently and economically converted to cheap steaks when past
her prime. In Re Marriage of Brantner, 67 Cal.App.3d 416, 419, 136 Cal.Rptr. 635, 637
(1977).
The distributive justice called for in these kinds of cases was, in Brantner, stated in these
terms:
[I]n those cases in which it is the decision of the parties that the woman becomes the
homemaker, the marriage is of substantial duration and at separation the wife is to
all intents and purposes unemployable, the husband simply has to face up to the
fact that his support responsibilities are going to be of extended durationperhaps
for life.
____________________

7
This term was first introduced in the article, Legal Regulation of Marriage Tradition and Change, by
Lenore Weitzman, 62 Calif.L.Rev. 1169 (1974), q.v.
104 Nev. 605, 612 (1988) Heim v. Heim
substantial duration and at separation the wife is to all intents and purposes
unemployable, the husband simply has to face up to the fact that his support
responsibilities are going to be of extended durationperhaps for life. This has nothing
to do with feminism, sexism, male chauvinism or any other trendy social ideology. It is
ordinary common sense, basic decency and simple justice.
Brantner, 67 Cal.App.3d at 420, 136 Cal.Rptr. at 637.
In Johnson, above, we manifested our concern for women like Loretta Heim, an example
of a woman who, for historical and personal reasons, and especially with the long
concurrence by her husband, chooses to make her contribution to a marriage by remaining at
home to raise the children of the union. . . .' 94 Nev. at 488, 581 P.2d at 863 (quoting Kay v.
Kay, 339 N.E.2d 143, (N.Y. 1975)). We expressed concern that such a woman might well be
victimized rather than liberated by being required to enter the working world. 94 Nev. at
488, 581 P.2d (quoting Kay 339 N.E.2d at 147).
A fairly recent case which is very close factually to the case at hand lends judicial
authority to our conclusion that $500.00 per month alimony cannot be just and equitable
under these circumstances. In Orr v. Orr, 458 So.2d 362 (Fla.Dist.Ct.App. 1984), the
husband, a prominent judge, earned around $5,000.00 per month. His wife was capable of
earning $800.00 per month. The trial court ordered alimony to the wife of $800.00 per month.
The court of appeals ruled that, taking into consideration the other factors in the decree, this
paltry amount of alimony, constituted an abuse of discretion. The Orr court observed that,
as here, the husband, after the minor adjustment required to be made under the alimony
decree, could still maintain the life style he has enjoyed for 36 years. The wife cannot.
Quoting the Supreme Court of Florida, the appeals court in Orr ruled that a dissolution
award should be sufficient to compensate the wife for her contribution to the marriage, and
further recognized that a trial court need not equalize the financial positions of the parties.
However, a trial judge must ensure that neither spouse passes automatically from misfortune
to prosperity or from prosperity to misfortune, and, in viewing the totality of the
circumstances one should not be shortchanged.' 458 So.2d at 363.
It is undeniable that Mrs. Heim has been shortchanged, that divorce has automatically
taken her from relative prosperity to misfortune, if not destitution, and that her treatment by
the court below was not just and equitable. She is entitled to some fair return based on her
thirty-five year contribution to the marital partnership. She is entitled after this long marriage
to live as nearly as fairly possible to the station in life that she enjoyed before the divorce.
104 Nev. 605, 613 (1988) Heim v. Heim
before the divorce. As things presently stand, after the minor adjustment required by Dr.
Heim's monthly payment of $500.00 alimony, Dr. Heim will still be able to enjoy over
$60,000.00 in annual income with less than $24,000.00 in annual expenses. It is not fair
under the circumstances of this case to let Dr. Heim enjoy this kind of income and its
accompanying life-style while his wife of thirty-five years must live, if not in poverty,
certainly at a very low standard of living.
We will not invade the province of the trial court by determining what is the minimum
amount which should be considered as a just and equitable alimony award in this case, but we
believe that the award should not necessarily be limited to the $1,500.00 per month prayed for
by Loretta Heim. The case should be reexamined by the trial court in the light of the
principles announced in this opinion, and a new, fair and just alimony award should be
decided upon. Reversed and remanded; the cross-appeal is dismissed.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________
104 Nev. 613, 613 (1988) Musso v. Binick
ANTHONY J. MUSSO and DONNA M. MUSSO, Appellants, v. ROBERT J. BINICK and
JUNE A. BINICK, Respondents.
No. 18335
November 22, 1988 764 P.2d 477
Motion for attorney's fees on appeal. Eighth Judicial District Court, Clark County; Miriam
Shearing, Judge.
Prevailing party in an action upon a sales agreement was awarded attorney's fees, pursuant
to the sales agreement, by the district court and, after dismissal of appeal, sought an award of
attorney's fees on the appeal. The Supreme Court held the prevailing party was entitled to an
award of reasonable attorney's fees for services performed on appeal; determination of a
reasonable amount to be addressed by district court, subject to Supreme Court review.
Motion denied.
Albert D. Massi, and Allen A. Cap, Las Vegas, for Appellants.
Richard McKnight, Las Vegas, for Respondents.
104 Nev. 613, 614 (1988) Musso v. Binick
1. Costs.
Contract provisions for attorney's fees in the event legal action is commenced to enforce an agreement
include an award of fees for successfully bringing or defending an appeal.
2. Costs.
Prevailing party was entitled to an award of reasonable attorney's fees, pursuant to the contractual
agreement for award of attorney fees in suit to enforce sales agreement, for services performed on appeal.
3. Costs.
A prevailing party's motion for an award of attorney's fees on appeal should be directed towards the
district court in the first instance, subject to review by the Supreme Court.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting respondents' motion for
summary judgment and awarding attorney's fees to respondents. On June 23, 1988, this court
issued an order dismissing this appeal. Respondents, having prevailed on appeal, have moved
for an award of attorney's fees on appeal. The motion is opposed.
The district court awarded respondents attorney's fees pursuant to a sales agreement which
provides: [I]n the event any parties shall prevail in any legal action commenced to enforce
the agreement, they shall be entitled to all costs incurred in such action including attorney's
fees. This court upheld the district court's award. Respondents now contend that they are
entitled to an additional award of attorney's fees pursuant to this contractual agreement for
having successfully defended their judgment on appeal. We agree.
[Headnotes 1-3]
Although some courts have construed general provisions for attorney's fees in contracts as
not including an award of attorney's fees on appeal, the majority of states now recognize that
a contract provision for attorney's fees includes an award of fees for successfully bringing or
defending an appeal. See, e.g., Zambruk v. Perlmutter 3rd Generation Builders, Inc., 510 P.2d
472, 476 (Colo.Ct.App. 1973); Management Services v. Development Associates, 617 P.2d
406 (Utah 1980); Annotation, Contractual Provision for Attorneys' Fees as Including
Allowance for Services Rendered Upon Appellate Review, 52 A.L.R.2d 863 (1957). The
purpose of such contractual provisions, to indemnify the prevailing party for the full amount
of the obligation, is defeated and a party's contract rights are diminished if the party is forced
to defend its rights on appeal at its own expense. We therefore conclude that respondents
are entitled to an award of attorney's fees pursuant to the contractual agreement of the
parties.
104 Nev. 613, 615 (1988) Musso v. Binick
therefore conclude that respondents are entitled to an award of attorney's fees pursuant to the
contractual agreement of the parties. We note, however, that the determination of a
reasonable attorney's fee involves questions of fact. See Pennsylvania v. Del. Valley
Citizens' Council, 478 U.S. 546 (1986). Indeed, in this case, respondents seek an award of
fees for services performed on appeal and for services performed in the district court in
pursuing post-appeal motions to enforce the judgment. Appellants argue that the amount of
the fee sought by respondents is unreasonable. These questions should be addressed, in the
first instance, by the district court with its greater fact-finding capabilities, subject to our
review. See Zambruk, 510 P.2d at 476; Puget Sound Mutual Savings Bank v. Lillions, 314
P.2d 935 (Wash. 1957), cert. denied, 357 U.S. 926 (1958). Accordingly, we deny
respondents' motion for an award of attorney's fees on appeal without prejudice to
respondents' right to raise this motion in the district court.
1

____________________

1
This court has not previously addressed this precise issue on the merits. Nevertheless, in Cowgill v. Dodd,
87 Nev. 401, 488 P.2d 353 (1971), this court dismissed as procedurally improper an appeal from an order of the
district court denying a litigant's motion to file in the district court an amended counterclaim seeking attorney's
fees on appeal following an appeal to this court in which the litigant had prevailed. This court noted that the
district court's order was not appealable and that the district court's judgment could not be reopened to allow the
filing of a new counterclaim. This court did not hold, however, that a litigant cannot seek by motion in the
district court an award of attorney's fees on appeal based on a contractual provision for such fees after prevailing
in the appeal. To the extent that Cowgill would appear to preclude the filing of such a motion in the district court
following the issuance of this court's remittitur, it is expressly disapproved.
____________
104 Nev. 615, 615 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL #1285, a Nevada
Corporation, Appellant, v. CITY OF LAS VEGAS, NEVADA, a Municipal Corporation,
Respondent.
No. 18608
November 22, 1988 764 P.2d 478
Appeal from an order of the district court staying arbitration. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Firefighter, reinstated from a suspension without pay after criminal charges of larceny
were dropped, signed a stipulation which waived his right to back pay, benefits, and the right
to arbitrate regarding such pay and benefits.
104 Nev. 615, 616 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
arbitrate regarding such pay and benefits. Firefighters union interceded on behalf of
firefighter and submitted his grievance for back pay and benefits to the city for arbitration,
and city responded by filing a Motion for Stay of Arbitration. The district court granted the
city's motion. The firefighter appealed. The Supreme Court held that: (1) firefighter's
grievance was within the arbitration agreement between the firefighters and the city, and (2)
firefighter had not waived his right to arbitration.
Reversed.
Hilbrecht and Associates, and Blair Parker, Las Vegas, for Appellant.
George Ogilvie, City Attorney, and Geraldine H. Schwartzer, Deputy City Attorney, Las
Vegas, for Respondent.
1. Arbitration.
Nevada courts resolve all doubts concerning the arbitrability of the subject matter of a dispute in favor of
arbitration.
2. Labor Relations.
Firefighter's suspension, because he faced criminal charges of larceny, was a disciplinary procedure
which was mandatorily negotiable under statute, and thus was arbitrable under collective bargaining
agreement providing for arbitration of disputes on mandatorily negotiable issues. NRS 288.150.
3. Stipulations.
Stipulation signed by firefighter waiving his right to any salary or benefits that accrued during his
suspension was void, where stipulation was signed without knowledge on the part of firefighter of a Civil
Service Rule requiring back pay when reason for suspension is not sustained and was in violation of the
municipal ordinance incorporating the Civil Service Rules.
4. Municipal Corporations.
A municipal ordinance is binding upon all municipal authorities, and cannot be repealed by resolution or
contract.
5. Arbitration.
If prejudice would occur to a party opposing arbitration as a result of a vitiated waiver, a waiver of
arbitration rights will be upheld.
6. Labor Relations.
Firefighter's waiver of his right to arbitration, when he signed a void stipulation waiving back pay and
benefits accrued during his suspension for criminal charges which were later dropped, would not be
enforced, as enforcement would result in prejudice to firefighter by abrogating his right to the back pay and
benefits, while city would not be prejudiced by refusal of enforcement, as dropping of charges required
conclusion that he did not commit the crime.
7. Arbitration.
In view of State's policy strongly favoring arbitration when the parties previously agreed to that method
of dispute resolution, a waiver should not be lightly inferred.
104 Nev. 615, 617 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
OPINION
Per Curiam:
Charles J. Williams is a firefighter employed by respondent Las Vegas. On November 6,
1985, Las Vegas suspended Williams without pay because he faced criminal charges of
larceny. According to Las Vegas, Williams' conduct discredited the city because his position
requires the highest standards of integrity and honor. Consequently, Las Vegas declared that
Williams' suspension would remain in effect until adjudication of the charges against him.
In August of 1986, the district attorney dropped all charges against Williams after a
witness was unable to identify Williams as the perpetrator of the crime. Williams
immediately sought reinstatement to his former position. Eventually, Las Vegas advised both
Williams and his attorney that no reinstatement would occur until Williams signed a
stipulation waiving all rights to back pay and benefits accrued during his suspension. On
August 14, 1986, Williams signed the stipulation for the purpose of making a full and final
resolution of the disciplinary matter.
1
On August 15, 1986, he returned to work.
Appellant, Local #1285 of the International Association of Firefighters, (the Firefighters),
represents the employees of the Las Vegas fire department for all collective bargaining
purposes. On August 31, 1986, the Local President of the Firefighters informed Williams that
Las Vegas, by forcing him to sign the stipulation in order to get his job back, violated
Williams' rights under the contractual agreement between Las Vegas and the Firefighters.
Accordingly, on September 2, 1986, Williams filed a grievance against Las Vegas based
on the city's denial of his back pay and benefits. The fire department responded that Williams'
complaint did not constitute a grievable matter, and he appealed to the city manager. On
September 16, 1986, the city manager also rejected Williams' grievance, stating that
disciplinary actions are not grievable under the current Firefighter contract with Las Vegas.
On September 29, 1986, in accordance with the collective bargaining agreement's
grievance procedure,
2
the Firefighters interceded on Williams' behalf.
____________________

1
The stipulation also contained a provision stating: That Charles J. Williams agrees to not take any action,
including but not limited to protest, grievance, arbitration or litigation regarding any such salary or benefits.

2
Article Ten, section 10 of the collective bargaining agreement provides that:
Settlements reached shall not be inconsistent with the provisions of this Agreement. Should the Union
believe that a settlement made by an
104 Nev. 615, 618 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
interceded on Williams' behalf. The Local President submitted Williams' grievance to Las
Vegas for arbitration. Again, Las Vegas rejected the grievance for the reason mentioned
above.
On October 10, 1986, the Firefighters unilaterally requested a list of arbitrators from the
American Arbitration Association. In response, Las Vegas informed the American Arbitration
Association that it would not participate in the arbitration requested by the Firefighters. On
October 28, 1986, Las Vegas filed a Motion For Stay of Arbitration in the district court. On
September 24, 1987, the district court granted Las Vegas' motion, and the Firefighters appeal
from the district court's decision.
I. Whether the district court's order staying arbitration violated NRS 38.045.
The Firefighters argue that the district court's order staying arbitration violated NRS
38.045,
3
which directs a court to order an arbitration proceeding upon a showing that there is
an agreement to arbitrate. They contend that the arbitration agreement in effect between the
Firefighters and Las Vegas encompasses Williams' grievance. Therefore, the court should
have ordered arbitration to proceed. Las Vegas responds that the collective bargaining
arbitration provisions do not provide for arbitration of individual employee disciplinary
matters.
[Headnote 1]
Nevada courts resolve all doubts concerning the arbitrability of the subject matter of a
dispute in favor of arbitration. Exber, Inc.
____________________
individual employee is inconsistent with the provisions of this Agreement, it shall have the right to
proceed with a grievance at level 3 of this grievance procedure.

3
NRS 38.045 states, in relevant part:
1. On application of a party showing an agreement described in NRS 38.035, and the opposing
party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing
party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the
determination of the issue so raised and shall order arbitration if found for the moving party; otherwise,
the application shall be denied.
2. On application, the court may stay an arbitration proceeding commenced or threatened on a
showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute,
shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the
opposing party, the court shall order the parties to proceed to arbitration.
. . . .
5. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or
bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.
104 Nev. 615, 619 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
v. Sletten Constr. Co., 92 Nev. 721, 729, 558 P.2d 517, 522 (1976). Las Vegas argues that the
collective bargaining agreement's arbitration clause cannot be interpreted to include
disciplinary measures.
4
However, the record on appeal contains substantial evidence that the
arbitration agreement encompasses Williams' grievance.
Article Ten of the Firefighters' collective bargaining agreement describes the Firefighters'
grievance procedures in the event of a dispute with Las Vegas. Article Ten provides that:
If a dispute involves an established past practice within the Fire Department that would
be mandatorily negotiable under the provisions of NRS 288.1505 that is not expressly
provided for in the provisions of this agreement, such a dispute may be submitted for
resolution as a grievance. In such a case, the dispute shall be processed in the normal
fashion to the arbitrator. . . . The arbitrator selected, if any, shall then first rule on the
negotiability of the issue and whether or not the issue was a past practice. If the
arbitrator rules the dispute to be arbitrable, the same arbitrator shall hear the merits of
the underlying grievance.
(Footnote added.)
____________________

4
Instead, Las Vegas contends that its Civil Service Rules govern individual firefighter disciplinary measures.

5
NRS 288.150 provides, in relevant part:
1. Except as provided in subsection 4, every local government employer shall negotiate in good faith
through one or more representatives of its own choosing concerning the mandatory subjects of bargaining
set forth in subsection 2 with the designated representatives of the recognized employee organization, if
any, for each appropriate bargaining unit among its employees. If either party so requests, agreements
reached must be reduced to writing.
2. The scope of mandatory bargaining is limited to:
(a) Salary or wage rates or other forms of direct monetary compensation.
(b) Sick leave.
(c) Vacation leave.
(d) Holidays.
. . . .
(i) Discharge and disciplinary procedures.
. . . .
(o) Grievance and arbitration procedures for resolution of disputes relating to interpretation or
application of collective bargaining agreements.
. . . .
3. Those subject matters which are not within the scope of mandatory bargaining and which are
reserved to the local government employer without negotiation include:
(a) The right to hire, direct, assign or transfer an employee, but excluding the right to assign or
transfer an employee as a form of discipline.
104 Nev. 615, 620 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
[Headnote 2]
As a consequence of his larceny charge, and pursuant to the Las Vegas Municipal Code,
Las Vegas suspended Williams without pay. Disciplinary procedures are mandatorily
negotiable under NRS 288.150. Thus, Article Ten subsumes the resolution of Las Vegas'
disciplinary action against Williams. Therefore, this dispute is an appropriate subject for
grievance and arbitration.
Las Vegas correctly cites AT&T Technologies v. Communications Workers of America,
475 U.S. 643, 649 (1986), for the proposition that the question of arbitrability is usually
6
an
issue for judicial determination. However, AT&T also established a presumption of
arbitrability when a contract contains an arbitration clause. Id. at 650. Courts should order
arbitration of particular grievances unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Id.
We can interpret Article Ten's arbitration clause as encompassing Williams' dispute with
Las Vegas. Thus, according to both federal and Nevada case law, the district court should
have ordered Las Vegas and the Firefighters to proceed to arbitration. Therefore, the district
court violated NRS 38.045 when it granted Las Vegas' Motion For Stay of Arbitration.
II. Whether Williams waived his right to arbitration.
Las Vegas claims that Williams waived his right to arbitrate his grievance when he signed
the stipulation with the advice of his attorney. However, the Firefighters argue that the
stipulation was not a valid waiver. We believe that the Firefighters' argument has merit.
[Headnote 3]
The stipulation waived Williams' rights to any salary or benefits that accrued during his
suspension. However, Las Vegas Civil Service Rule 530.2 states that [a]ny suspension shall
be without pay. In cases where the charge is not sustained, salary withheld shall be paid. Las
Vegas' city attorney never informed Williams or his attorney of the existence of this rule
before they signed the stipulation.
____________________

6
AT&T held that Unless the parties clearly and unmistakably provide otherwise, the question of whether the
parties agree to arbitrate is to be decided by the court, not the arbitrator. Id. at 649 (emphasis added). In the
instant case, Article Ten provides that the arbitrator shall rule as to whether the dispute is arbitrable. Thus, even
if this court overturns the district court and orders arbitration to proceed, the arbitrator could still choose not to
resolve Williams' case.
104 Nev. 615, 621 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
[Headnote 4]
Las Vegas adopted its Civil Service Rules as an ordinance pursuant to the Las Vegas
Municipal Code. LVMC 3.04.010. A municipal ordinance is binding upon all municipal
authorities, and cannot be repealed by resolution or contract. City of Las Vegas v. Cragin
Industries, 86 Nev. 933, 939, 478 P.2d 585, 589 (1970). Contracts that violate such
ordinances are void and against public policy. Id. The stipulation signed by Williams and Las
Vegas violated Civil Service Rule 530.2. Therefore, the stipulation signed by the parties on
August 14, 1986, was void, and not a valid waiver of Williams' right to seek his back pay.
[Headnotes 5, 6]
If prejudice would occur to the party opposing arbitration as a result of a vitiated waiver, a
waiver of arbitration rights will be upheld. County of Clark v. Blanchard Constr. Co., 98 Nev.
488, 491, 653 P.2d 1217, 1220 (1982). Las Vegas argues that it will suffer prejudice if this
court refuses to enforce Williams' waiver. Specifically, Las Vegas contends that after the
district attorney dropped charges against Williams, it still had a right to try to terminate
Williams for his involvement in the alleged theft.
7
Thus, Las Vegas abrogated that right
when it signed the stipulation.
We disagree. Las Vegas Civil Service Rule 530.5 states that [a]n employee may be
suspended for an indefinite period of time as a result of a criminal complaint in a court of
law, in which case the suspension may be until the matter is adjudicated by a court of
competent jurisdiction. Since the authorities dropped the charges against Williams, we must
conclude that he didn't commit the crime. Therefore, Williams was entitled to reinstatement,
not subject to termination.
[Headnote 7]
In view of Nevada's policy strongly favoring arbitration when the parties previously agreed
to that method of dispute resolution, a waiver should not be lightly inferred. Blanchard
Constr. Co., 98 Nev. at 491, 653 P.2d at 1219. Enforcement of the waiver results in prejudice
to Williams because it abrogates his right to salary and benefits accrued during his
suspension. Therefore, for the above-mentioned reasons, we hold that Williams did not waive
his right to arbitrate his grievance when he signed the stipulation.
____________________

7
Las Vegas argues that although the district attorney dropped formal charges against Williams, the
underlying cause of his suspension, (i.e. criminal misconduct), was still at issue. The district attorney informed
Las Vegas that it was dropping the larceny charges against Williams due to lack of witnesses. Thus, Las Vegas,
in a termination hearing, could have presented evidence of Williams' guilt. Instead, the argument continues, Las
Vegas elected to negotiate the stipulation with Williams.
104 Nev. 615, 622 (1988) Int'l Assoc. Firefighters v. City of Las Vegas
waive his right to arbitrate his grievance when he signed the stipulation.
Accordingly, we reverse the decision of the district court staying arbitration in this case.
8

____________________

8
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 622, 622 (1988) McIntyre v. State
GEORGE JUNIOR McINTYRE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18728
November 22, 1988 764 P.2d 482
Appeal from convictions on seven counts of burglary, six counts of robbery with the use of
a deadly weapon, and one count of robbery. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
The district court convicted defendant on seven counts of burglary, six counts of robbery
with use of a deadly weapon, and one count of robbery. Defendant appealed. The Supreme
Court held that a toy gun, absent proof of deadly capabilities, could not support an enhanced
sentence for the commission of a crime with use of a deadly weapon.
Affirmed in part; vacated in part.
Morgan D. Harris, Public Defender, Thomas W. Rigsby, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex A. Bell, District Attorney, James
Tufteland, Deputy District Attorney and Christopher Blair, Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Because toy gun was not a firearm, it did not partake of a firearm's per se deadly status. NRS 193.165.
2. Criminal Law.
Toy gun, absent proof of deadly capabilities, could not support enhanced sentence for commission of
crime with use of deadly weapon. NRS 193.165.
OPINION
Per Curiam:
On seven separate occasions between December 10, 1986, and February 12, 19S7,
someone wearing a mask, goggles, and gloves robbed various Las Vegas bars.
104 Nev. 622, 623 (1988) McIntyre v. State
February 12, 1987, someone wearing a mask, goggles, and gloves robbed various Las Vegas
bars. In each of these early morning robberies, the perpetrator handed a yellow and white
striped pillowcase to the bartender and demanded that the bartender fill the bag with money
from the cash register and coins from under the counter. In six of the seven incidents, the
robber used what appeared to be a machine gun.
On March 3, 1987, police arrested the appellant, George Junior McIntyre. At the time of
his arrest he possessed two blue athletic bags which contained, among other things, a ski
mask, goggles, gloves, a yellow and white striped pillowcase, and a plastic toy machine gun.
McIntyre was charged with the seven bar robberies. During the trial, witnesses from each
of the robberies identified one or more of the articles from McIntyre's bags as something the
robber used when committing the crimes. Witnesses from three of the robberies specifically
identified McIntyre's toy gun as the robber's weapon.
A jury convicted McIntyre on seven counts of burglary, six counts of robbery with the use
of a deadly weapon, and one count of robbery without the use of a deadly weapon. The court,
thereafter, sentenced McIntyre to ten years in prison for each of the burglary convictions and
fifteen years for each of the robbery convictions. The court added a consecutive fifteen year
sentence, in accordance with NRS 193.165, to each of the robbery convictions in which the
jury found McIntyre used a deadly weapon.
The question before us on appeal is whether a toy gun, absent proof of deadly capabilities,
can support an enhanced sentence for the commission of a crime with use of a deadly
weapon. We hold that it cannot.
[Headnote 1]
NRS 193.165 requires that a criminal's sentence be enhanced when he or she uses a
firearm or other deadly weapon . . . in the commission of a crime.
1
We have previously
determined that in statutorily distinguishing firearms from other deadly weapons, the
legislature, for purposes of sentence enhancement, attributed to firearms a per se deadly
status; proof of a firearm's deadly capabilities is not required. Stalley v. State, 91 Nev. 671,
541 P.2d 658 (1975). We have applied this rationale in cases involving blank guns, Anderson
v. State, 96 Nev. 633, 614 P.2d 540 {19S0), and firearms which are, in fact, inoperable.
____________________

1
The complete statute reads:
Any person who uses a firearm or other deadly weapon or a weapon containing or capable of emitting
tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a crime shall
be punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statue for such crime.
104 Nev. 622, 624 (1988) McIntyre v. State
(1980), and firearms which are, in fact, inoperable. Allen v. State, 96 Nev. 334, 609 P.2d 321
(1980).
[Headnote 2]
However, because McIntyre's toy gun is not a firearm,
2
it does not partake of a firearm's
per se deadly status. Proof of a toy gun's actual deadly capabilities is necessary before NRS
193.165 can apply. In this case, no evidence suggests that McIntyre could have used his toy
gun as a bludgeon or in some other way to inflict death or great bodily harm, prospects that
the enhancement provision was designed to deter. Absent such evidence, the enhanced
sentences for use of a deadly weapon cannot stand. See People v. Skelton, 414 N.E.2d 455,
458 (Ill. 1980); State v. Allen, 343 S.E.2d 893 (N.C. 1986); Pena Cortez v. State, 732 S.W.2d
713 (Texas 1987).
3

Although the evidence at trial was insufficient to show McIntyre used a deadly weapon,
after reviewing the record we are satisfied that the evidence was more than sufficient to
convince a reasonable jury, beyond a reasonable doubt, that McIntyre committed the
underlying burglaries and robberies. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
We have considered McIntyre's remaining contentions and conclude that they are without
merit.
We affirm each of the burglary and robbery convictions. However, because the weapon
McIntyre used when committing the crimes was a toy gun with no deadly capabilities, we
vacate the six enhancement sentences and order stricken the with use of a deadly weapon
language from the robbery convictions in which it appears.
4

____________________

2
Firearm' means any weapon with a caliber of .177 inches or greater from which a projectile may be
propelled by means of explosive, spring, gas, air or other force. NRS 202.253.

3
Some jurisdictions base their findings of a weapon's deadliness on a victim's subjective perception of the
weapon at the time of the crime. However, these jurisdictions have statutes which, unlike Nevada's, allow
sentence enhancement when a criminal uses what appears to be a deadly weapon. See, e.g., State v.
Smallwood, 346 A.2d 164, 166 (Del. 1975); Wickman v. State, 693 S.W.2d 862 (Mo.Ct.App. 1985).

4
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 625, 625 (1988) Pellegrini v. State
DAVID MICHAEL PELLEGRINI, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 18581
November 22, 1988 764 P.2d 484
Appeal from convictions of burglary, attempted robbery with use of a deadly weapon, and
first degree murder with use of a deadly weapon, and from imposition of the death penalty.
Eighth Judicial District Court, Clark County; Stephen Huffaker, Judge.
Defendant was convicted of burglary, attempted robbery with the use of a deadly weapon,
and first degree murder with the use of a deadly weapon by jury in the district court and the
death penalty was imposed. Defendant appealed. The Supreme Court held that: (1) evidence
from the search of defendant's apartment was admissible even if there was technical defect in
warrant; (2) there was no reversible prosecutorial misconduct; (3) evidence from a search of
defendant's car conducted the year before was admissible during the penalty phase of
defendant's trial; and (4) the death penalty sentence was not excessive considering the
circumstances of the murder.
Affirmed.
Morgan D. Harris, Public Defender, Robert B. Amundson, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Chief Deputy District Attorney, Daniel Seaton, Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
An arrest warrant focused upon a well-identified suspect and supported by sufficient probable cause
contained only a technical defect where officers and district attorney, informed of suspect's new address by
apartment manager, telephoned issuing judge and received authorization to modify the warrant, even
though the telephone conversation was not recorded, and thus evidence obtained during execution of
warrant did not have to be suppressed.
2. Criminal Law.
A verdict will not be reversed on the basis of prosecutorial misconduct when the defendant failed to
object, there was overwhelming evidence of guilt, and the offensive remarks did not contribute to the
verdict.
3. Criminal Law.
The prosecutor's argument that imposition of the death penalty would deter teenagers from committing
similar murders was not prosecutorial misconduct.
104 Nev. 625, 626 (1988) Pellegrini v. State
4. Criminal Law.
The prosecution's speculative remarks that referred to the possibility that defendant might kill again if let
out of prison were not prosecutorial misconduct sufficient to justify reversal.
5. Homicide.
Evidence from search of the defendant's vehicle a year prior to murder, indicating a prior crime, was
admissible during penalty phase of murder trial, even if search was illegal, where investigators conducting
search had no idea that information would become useful in a murder trial, and the investigators believed
they were making a proper search.
6. Criminal Law.
Evidence which is otherwise inadmissible, including evidence of character and specific instances of
conduct, will be admitted during death penalty hearings to help the jury determine the appropriate sentence
for a capital crime. NRS 175.552.
7. Criminal Law.
A decision to admit particular evidence during the penalty phase of capital case is within the sound
discretion of the trial court, and will not be overturned absent an abuse of that discretion. NRS 48.035.
8. Homicide.
Evidence obtained in an alleged unlawful search of defendant's car, that simply informed the jury that
defendant had once committed violence against property and carried weapons in his car, was not overly
prejudicial, and was properly admitted during the penalty phase of defendant's murder trial, under statute
allowing evidence during penalty phase of specific instances of conduct. NRS 48.035.
9. Homicide.
Death penalty sentence was not excessive, where murder was a cold-blooded, deliberate, and completely
unprovoked act committed during a burglary and an attempted robbery, even though the defendant was
relatively youthful and had no prior record. NRS 177.055, subd. 2.
10. Homicide.
Jury's finding that defendant was involved in an attempted robbery when the murdered a store clerk was
supported by evidence of an apparent attempt by defendant to open the store's cash register, and by
defendant's request for the presence of the store manager, who defendant knew had the key to the store's
safe.
OPINION
Per Curiam:
David Michael Pellegrini appeals from jury convictions of burglary, attempted robbery
with use of a deadly weapon, and first degree murder with use of a deadly weapon. He also
appeals from the jury's imposition of the death penalty for his crimes. The record provides
substantial support for the verdict and the penalty; furthermore, we are satisfied that appellant
received a fair trial. We therefore affirm the convictions and the penalty imposed.
Pellegrini entered a 7-Eleven store in Las Vegas at approximately 8:00 p.m. on the night of
October 25, 1986. He was nineteen years old.
104 Nev. 625, 627 (1988) Pellegrini v. State
nineteen years old. He took a twelve-pack of beer from the refrigerator case and walked to the
cashier's counter. The cashier, Barry Hancock, rang up the sale; Pellegrini then claimed to be
an undercover officer and told Hancock he was under arrest for selling beer to a minor.
Pellegrini directed Hancock to lock the front door and call the store manager to inform her
of what had happened. Hancock complied, and during the telephone conversation, Pellegrini
asked the manager to come down to the store. After the call was completed, Pellegrini
handcuffed the cashier, led him into a back room, and told him to sit on a stool. The appellant
emerged from the back room, then wandered briefly in the vicinity of the case register. He
reentered the room where Hancock sat, handcuffed and helpless. Moments later, Pellegrini
shot Hancock through the head. The bullet entered his body through his forehead and traveled
down into the back of his neck. The medical examiner estimated that the gun was discharged
at a distance of less than two inches from Hancock's head.
Several witnesses observed appellant's actions in the store area, followed him as he left,
and supplied the police with his description and license plate number. A video camera in the
store recorded the events, including the sound of the gunshot in the back room. Another
witness saw Pellegrini in the 7-Eleven parking lot a short time after the murder occurred.
Several witnesses recognized his face in a photographic lineup; the police subsequently
discovered his location, and he was arrested in his home at approximately 4:00 a.m. on
October 26, 1986.
At trial, appellant conceded in his opening statement that he had shot the victim. He took
the stand and testified that he had stumbled and fired the gun accidentally. The jury chose not
to believe him and convicted him of burglary and attempted robbery and first degree murder
with use of a deadly weapon. After the penalty hearing the jury sentenced Pellegrini to death.
Pellegrini now appeals, citing several instances of alleged error by the district court. The
arguments lack merit; we find no error which is so prejudicial as to require reversal.
THE ISSUES
1. The search of appellant's apartment. Appellant claims that certain evidence
1
was
obtained as the result of an unlawful search made of his apartment at the time of his arrest.
The arresting officers held a valid warrant for Pellegrini's arrest when they arrived at the
apartment complex where he was believed to be residing.
____________________

1
The following items were recovered from appellant's apartment: pants, shoes and handcuffs with blood
spatters, a jacket, and the murder weapon, a .357 Magnum revolver, with bullets.
104 Nev. 625, 628 (1988) Pellegrini v. State
residing. The address on the warrant was incorrect, however, because Pellegrini had moved to
another apartment in the same complex thirty days before. The apartment manager informed
the officers of this change in address, and the district attorney accompanying them telephoned
the issuing judge to seek authorization to modify the warrant. The judge granted permission
to do so, but no one recorded the conversation. Appellant claims the failure to record
rendered the warrant invalid and that the district court erred in refusing to suppress the
evidence thus obtained. We disagree.
[Headnote 1]
We have held that a technical defect in a warrant does not necessarily require the
suppression of evidence gathered during the ensuing search. Sanchez v. State, 103 Nev. 166,
734 P.2d 726 (1987); Lucas v. State, 96 Nev. 428, 610 P.2d 727 (1980). We are satisfied that
the failure to record the telephone conversation at issue is such a technical defect. The suspect
was identified through a photographic lineup by a number of eyewitnesses; in addition,
several of these witnesses had observed the license plate number of the suspect's vehicle.
When the officers arrived at the suspect's last known address, the apartment manager
informed them of his recent move to another apartment in the same complex, perhaps fifty
yards from his former residence. The manager was a reliable source of such information. The
officers then requested a modification of the warrant from the judge who issued it.
The warrant focused upon a well-identified suspect and was supported by sufficient
probable cause. The officers obtained judicial authorization of a change in the warrant to
allow the search of a particularly identified residence, that of the appellant. Under these
circumstances, there was no reasonable possibility that another premises might be searched.
Lucas, supra, 96 Nev. at 432, 610 P.2d at 730. Furthermore, the circumstances of the
modification and the substance of the conversation were established by sworn testimony. We
conclude that the district court did not err in refusing to suppress the evidence found in
appellant's apartment at the time of his arrest.
2. Prosecutorial misconduct. Appellant cites several remarks made by the district attorney
which he asserts are sufficiently prejudicial to require reversal. Our review of the record does
not support this contention; we therefore decline to reverse either the convictions or the
penalty.
[Headnote 2]
This court will not reverse a verdict on the basis of prosecutorial misconduct where the
defendant fails to object, there is overwhelming evidence of guilt, and the offensive remarks
did not contribute to the verdict.
104 Nev. 625, 629 (1988) Pellegrini v. State
not contribute to the verdict. Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987); Sipsas v.
State, 102 Nev. 119, 716 P.2d 231 (1986); Woods v. State, 94 Nev. 435, 581 P.2d 444
(1978). We note that appellant failed to object to many of the remarks now cited as
misconduct. Furthermore, there is overwhelming evidence of appellant's guilt, including the
eyewitnesses and the videotape. Appellant conceded that he shot the victim in his opening
argument to the jury. Thus, it is doubtful that any remarks made by the prosecutor contributed
significantly to the guilty verdict.
[Headnote 3]
During the penalty phase, the prosecutor argued that imposition of the death penalty would
deter teenagers from committing similar murders. This is not prosecutorial misconduct.
Retribution and deterrence are widely accepted as the underlying rationale for the enactment
of a death penalty. See Gregg v. Georgia, 428 U.S. 153 (1976); State v. Compton, 726 P.2d
837 (N.M.), cert. denied, 107 S.Ct. 291 (1986); Davis v. Kemp, 829 F.2d 1522 (11th Cir.
1987), cert. denied, 108 S.Ct. 1099 (1988). The introduction of this rationale into
prosecutorial argument is similarly acceptable. See State v. Compton, supra, 726 P.2d at 844.
[Headnote 4]
The prosecutor also alluded to the possibility that appellant might kill again if allowed to
live. A similar argument was criticized by this court in Collier v. State, 101 Nev. 473, 705
P.2d 1126 (1985). Of course, the misconduct in Collier was much more prejudicial, because
the prosecutor compared the defendant to a notorious criminal who had killed again after his
imprisonment. The remarks cited by appellant are speculative and refer only to the possibility
that Pellegrini might kill again if let out of prison. Certainly, we do not see in this case the
multiplicity and outrageousness of prosecutorial misconduct which required a reversal in
Collier.
Finally, we note the district court cautioned the jury that the arguments were not evidence,
and should be evaluated accordingly. We find no misconduct sufficient to justify a reversal.
3. Search of appellant's vehicle. Fire investigators searched appellant's vehicle nearly one
year before the shooting and seized .22 caliber casings and several weapons. The vehicle was
located in a body shop at the time of the search. The evidence was introduced during the
penalty phase of appellant's trial to show that he had deliberately destroyed the windows of a
former place of employment by shooting at them. Appellant contends the district court erred
by allowing the introduction of this evidence.
[Headnote 5]
Even assuming the unlawfulness of the fire investigators' search,2 the evidence is not
inadmissible.
104 Nev. 625, 630 (1988) Pellegrini v. State
search,
2
the evidence is not inadmissible. The admissibility of evidence obtained in a similar
search was addressed in Cavanaugh v. State, 102 Nev. 478, 729 P.2d 481 (1986), and we
concluded that:
The exclusionary rule exists to deter misconduct; we have already held that where (1)
the allegedly improper search involved a completely different crime, (2) the officers
involved had no idea that the knowledge they gained would become useful in the
prosecution of another offense, and (3) the violation of rights was unintentional, there is
nothing to deter and the exclusionary rule does not apply.
Id. at 485, 729 P.2d at 486. See also Taylor v. State, 92 Nev. 158, 547 P.2d 674 (1976). The
rationale of Taylor and Cavanaugh is equally applicable to this case. The investigation
concerned a completely different crime, committed nearly one year before Pellegrini's penalty
hearing. The fire investigators had no idea that the information they gained would become
useful in a murder trial. Furthermore, the investigators telephoned the district attorney's office
before making the search, and were misadvised that it could be conducted pursuant to the
forfeiture statute.
3
Thus, any violation of appellant's rights was unintentional on their part.
[Headnote 6]
In addition, death penalty hearings are controlled by a specific statute which allows for the
introduction of evidence which is otherwise inadmissible, including evidence of character and
specific instances of conduct.
4
A defendant's character and record are relevant to the jury's
determination of the appropriate sentence for a capital crime. Jones v. State, 101 Nev. 573,
707 P.2d 1128 (1985).
____________________

2
The investigators had recovered four casings and two pieces of lead from the area where the windows had
been destroyed. Pellegrini had recently been fired from the store for theft, and was a suspect in the vandalism.
As the investigators approached his vehicle, they observed similar casings on the floorboards. In fact, these
casings were later matched to the casings found at the scene of the crime. The search may therefore have been
justified under the plain view theory. See Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972). In the absence
of exigent circumstances, however, a warrant should be obtained prior to the search. Id. at 465, 499 P.2d at
1219. The vehicle was located in a body shop at the time it was found, indicating there may have been sufficient
time to obtain a warrant.

3
See NRS 179.121. The prosecutor conceded this advice was erroneous at the penalty hearing.

4
NRS 175.552 provides:
Upon a finding that a defendant is guilty of murder of the first degree, the court shall conduct a
separate penalty hearing to determine whether the defendant shall be sentenced to death or to life
imprisonment with
104 Nev. 625, 631 (1988) Pellegrini v. State
[Headnotes 7, 8]
The decision to admit particular evidence during the penalty phase is within the sound
discretion of the trial court, and will not be overturned absent an abuse of that discretion.
Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985), cert. denied, 107 S.Ct. 238 (1986). The
evidence must be relevant and must be more probative than prejudicial. NRS 48.035; Crump
v. State, 102 Nev. 158, 716 P.2d 1387 (1986). In this case, we are not persuaded that the
evidence obtained in the investigators' search was overly prejudicial. It simply informed the
jury that the appellant had once committed violence against property and carried weapons in
his car. No one was injured in the prior shooting, so there was no danger that the appellant
would be convicted for another, unproven crime. The district court did not abuse its
discretion in admitting the evidence during the penalty phase of the trial.
DEATH PENALTY REVIEW
[Headnotes 9, 10]
We are required by statute to review the imposition of a death penalty sentence. NRS
177.055(2).
5
In this case, however, we conclude that none of the enumerated factors apply.
The errors asserted on appeal have been discussed; other arguments made by the appellant
have been considered but, in our view, lack merit. The jury found two aggravating
circumstances in that the murder was committed during the course of both a burglary and an
attempted robbery.
6
These aggravating circumstances are supported by the record. The jury
concluded there were no mitigating circumstances.
____________________
or without possibility of parole. . . . In the hearing, evidence may be presented concerning aggravating
and mitigating circumstances relative to the offense, defendant or victim and on any other matter which
the court deems relevant to sentence, whether or not the evidence is ordinarily admissible. . . .

5
NRS 177.055(2) provides:
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is
taken:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any
arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.

6
The appellant punched two keys on the cash register in an apparent attempt to open it. Pellegrini knew the
store manager had the key to the safe, because he had worked in a 7-Eleven store. An eyewitness observed
Pellegrini return to the store after he had left the scene, followed by other
104 Nev. 625, 632 (1988) Pellegrini v. State
We find no evidence that the sentence was imposed under the influence of passion,
prejudice or any arbitrary factor. Finally, we do not regard the sentence as excessive. While it
is true that appellant was relatively youthful when he committed the murder, and had no prior
record, the killing was cold-blooded, deliberate, and completely unprovoked. See McKague v.
State, 101 Nev. 327, 705 P.2d 127 (1985). We therefore decline to disturb the considered
judgment of the jury.
The judgment of conviction and death sentence are hereby affirmed.
7

____________________
witnesses. The jury could reasonably find that Pellegrini had requested the store manager's presence in order to
open the safe. This supports the attempted robbery conviction.

7
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 632, 632 (1988) Hale v. Burkhardt
PRESTON Q. HALE, Appellant, v. JOE E. BURKHARDT and JOE E. BURKHARDT AND
ASSOCIATES, Respondents.
No. 18426
November 22, 1988 764 P.2d 866
Appeal from NRCP 12(b)(5) dismissal of count alleging violation of Nevada's civil
racketeering statutes. Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Real estate broker sued developer to recover commissions and fees claimed to be due in
assembling property for development, and asserted civil RICO claim under Nevada statute.
The RICO claim was dismissed with prejudice by the district court and broker appealed. The
Supreme Court held that: (1) proof of prior convictions of predicate crimes or of a RICO
violation is not a prerequisite to a civil RICO cause of action under Nevada statute; (2)
plaintiff bringing such an action need not allege an injury separate and distinct from the harm
caused by the predicate acts themselves; (3) the same degree of specificity with respect to
predicate criminal acts is required in civil RICO pleading as is required in criminal
indictment or information; and (4) broker failed to state a claim on which RICO relief could
be granted, in that complaint failed to allege the essential elements of the predicate crime of
obtaining money, property or labor under false pretenses and did not possess the requisite
conciseness and definiteness.
Affirmed.
104 Nev. 632, 633 (1988) Hale v. Burkhardt
Osborne, Jenkins & Gamboa and Thomas J. Gaffney and Cathy L. Bradford, Reno, for
Appellant.
Stephen C. Mollath, and Patricia F. Winnie, Reno, for Respondents.
1. Commerce.
Proof of prior convictions of predicate crimes or of a RICO violation is not a prerequisite to a civil
RICO cause of action under Nevada law. NRS 207.360, 207.390, 207.400, 207.470, 207.470,
subd. 2.
2. Commerce.
Plaintiff bringing a civil RICO action under Nevada statute need not allege an injury separate and distinct
from the harm caused by the predicate acts themselves. NRS 207.400, 207.470.
3. False Pretenses.
False pretense is a representation of some fact or circumstance which is not true and is calculated to
mislead, and may consist of any words or actions intended to deceive. NRS 205.380.
4. Commerce.
Same degree of specificity is required in pleading a civil RICO cause of action under Nevada law as is
called for in a criminal indictment or information, and thus the pleading must contain a sufficiently plain,
concise and definite statement of the essential facts that it would provide a person of ordinary
understanding with notice of the charges. NRS 173.075, subd. 1, 207.470.
5. Commerce.
Complaint alleging that developer made oral promise to pay real estate broker for services in assembling
real estate for project and that broker had not been paid, as well as alleging another scheme supposedly
involving breach of contract, failed to state a claim on which civil RICO relief could be granted under
Nevada statute, in that the complaint failed to allege the essential elements of the crime of obtaining
money, property or labor under false pretenses and lacked requisite conciseness and definiteness, where it
did not allege any specific false representations or the context in which they might have been made, as to
the first-alleged scheme, and, as to the second-alleged scheme, failed to indicate relationship between
alleged breach of contract and the unspecified false representations or to specify requisite elements such as
intent to defraud and reliance. NRS 205.380, 207.470.
6. Fraud.
Developer's forming intent to refuse to pay real estate broker while broker was continuing to work might
ripen into breach of contract but would not constitute fraud absent fraudulent words or conduct inducing
broker to continue to work. NRS 205.380.
7. Commerce.
Attaching to complaint in civil RICO action the RICO section of a complaint filed against the defendant
in federal court in another state, regarding alleged securities, mail and wire fraud, was not sufficient to
allege predicate criminal scheme for RICO suit under Nevada statute; court would not parse attached
75-page federal complaint to distill some kind of criminal charge from the federal lawsuit. NRS
207.470.
104 Nev. 632, 634 (1988) Hale v. Burkhardt
OPINION
Per Curiam:
Appellant, Preston Q. Hale, a real estate broker, entered into an oral agreement with
respondents, Joe E. Burkhardt and Joe E. Burkhardt and Associates (hereinafter Burkhardt),
in which Hale was to assist Burkhardt in purchasing real property comprising an entire city
block in Reno, Nevada, for a development project to be known as Liberty Center. Hale claims
that as a result of his efforts, Burkhardt was able to purchase the property for his project.
Burkhardt refused to pay Hale, and Hale sued for broker's commissions and fees claimed to
be due to him. Hale's fourth cause of action
1
was brought under Nevada's civil racketeering
statute, NRS 207.470, and alleged that Burkhardt violated Nevada's criminal racketeering
statute, NRS 27.400, sections (1)(a)(1)-(2), (1)(b) and (1)(c)(1)-(2), by obtaining services,
money or property by false pretenses. After first allowing Hale to file an amended complaint,
the trial court dismissed Hale's civil RICO claim with prejudice, pursuant to NRCP 12(b)(5).
We affirm the dismissal.
Nevada's Civil RICO Statute
Nevada's anti-racketeering statutes, NRS 207.350 through NRS 207.520, inclusive, were
enacted in 1983
2
and are patterned after the federal Racketeer Influenced and Corrupt
Organizations, or RICO, statutes, 18 U.S.C. 1961-1968. Like their federal counterparts,
Nevada's anti-racketeering statutes provide for a civil cause of action for injuries resulting
from racketeering activities under which a plaintiff may recover treble damages, attorney's
fees and litigation costs. See NRS 207.470.
3

Pursuant to NRS 207.470 and NRS 207.400, a civil RICO cause of action may be based
upon allegations and proof that the defendants
engag[ed] in at least two crimes related to racketeering that have the same or similar
pattern, intents, results, accom-
____________________

1
The first three causes of action alleged breach of contract, breach of implied covenants of good faith and
fair dealing and unjust enrichment.

2
NRS 207.415 was added to Nevada Revised Statutes in 1985.

3
NRS 207.470 states in part that:
Any person who is injured in his business or property by reason of any violation of NRS 207.400 has
a cause of action against a person causing such injury for three times the actual plices, victims or
methods of damages sustained. An injured person may also recover attorney's fees in the trial and
appellate courts and costs of investigation and litigation reasonably incurred.
104 Nev. 632, 635 (1988) Hale v. Burkhardt
plices, victims or methods of commission, or are otherwise interrelated by
distinguishing characteristics and are not isolated incidents, if at least one of the
incidents occurred after July 1, 1983, and the last of the incidents occurred within 5
years after a prior commission of a crime related to racketeering.
NRS 207.390. Crimes related to racketeering are enumerated in NRS 207.360 and include
the crime of obtaining money or property valued at $100 or more by false pretenses, the crime
that Hale has attempted to charge in his fourth cause of action. See NRS 207.360(26).
Prior Criminal Convictions and Racketeering Injuries
Hale's amended complaint appears to center on his claim that Burkhardt engaged in three
different criminal schemes. Following oral argument in this case, we ordered further
briefing on two questions which have assumed importance in comparable RICO cases and
which were not addressed in the parties' briefs. We asked: (1) whether proof of conviction of
crimes related to racketeering (i.e. predicate crimes) or of a RICO violation is a prerequisite
to a civil RICO cause of action; and (2) whether it is necessary to demonstrate a racketeering
injury different from that caused by the predicate crimes themselves. While these
questions have been resolved in the federal courts,
4
we note that Nevada's civil RICO statute
differs in some respects from the federal civil RICO statute.
[Headnote 1]
After careful consideration of the parties' arguments on these issues, we decide that proof
of prior convictions of predicate crimes or of a RICO violation is not a prerequisite to a
civil RICO cause of action brought pursuant to NRS 207.470. We note that NRS 207.470(2)
provides that [a] final judgment or decree rendered in favor of the state in any criminal
proceeding under NRS 205.322 or 207.400 estops the defendant in any subsequent civil
action or proceeding from denying the essential allegations of the criminal offense."
____________________

4
In Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2nd Cir. 1984), the Court of Appeals for the Second
Circuit held that the phrase by reason of a violation of section 1962 of this chapter in 18 U.S.C. 1964(c) meant
that [t]o bring a private civil [RICO] action, there must be a violation,' that is, criminal convictions on the
underlying predicate offenses. Sedima, 741 F.2d at 503. The Second Circuit additionally held that the by
reason of language in the federal civil RICO statute requires that plaintiffs allege injury caused by an activity
which RICO was designed to deter, which, whatever it may be, is different from that caused simply by [the]
predicate acts [themselves]. Sedima, 741 F.2d at 494.
The United States Supreme Court, in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), reversed the
decision of the Second Circuit, holding that there is no prior-conviction requirement under the federal civil
RICO statute nor is there a requirement of a racketeering injury separate from the harm caused by the
predicate acts themselves.
104 Nev. 632, 636 (1988) Hale v. Burkhardt
rendered in favor of the state in any criminal proceeding under NRS 205.322 or 207.400
estops the defendant in any subsequent civil action or proceeding from denying the essential
allegations of the criminal offense. We are persuaded by Hale's argument that to require
proof of a prior conviction would render NRS 207.470(2) superfluous, in violation of
well-settled principles of statutory construction. See, e.g., McCrackin v. Elko Cty. School
Dist., 103 Nev. 655, 747 P.2d 1373 (1987). We further agree with Hale that the legislature's
omission of the term conviction in the text of NRS 207.360, NRS 207.390, NRS 207.400
and NRS 207.470 raises the presumption that it was not the legislature's intent to require
proof of a conviction as a prerequisite to a civil RICO claim in Nevada's courts. Cf. 4447
Corp. v. Goldsmith, 504 N.E.2d 559 (Ind. 1987).
[Headnote 2]
We further decide that a plaintiff bringing a civil RICO action under NRS 207.470 need
not allege an injury separate and distinct from the harm caused by the predicate acts
themselves. Again, we agree with appellant Hale that NRS 207.400 and NRS 207.470when
read in conjunction with their ancillary provisionsare sufficiently clear in specifying the
type of racketeering injury contemplated by the legislature that it is unnecessary for this court
to attempt to create or define judicially a special racketeering injury.
Failure to State a Claim upon Which Relief Can Be Granted
Having decided that a civil RICO plaintiff need not plead and prove either criminal
convictions or separate racketeering injuries, we next consider Hale's principal issue on
appeal, namely, whether the trial court erred in dismissing Hale's fourth cause of action on the
ground that it does not state a claim upon which relief can be granted. In so doing, we are
mindful that the trial court's NRCP 12b(5) dismissal of the RICO cause of action must be
carefully reviewed. A claim should not be dismissed on this ground unless it appears to a
certainty that the plaintiff is not entitled to relief under any set of facts which could be proved
in support of the claim. Edgar v. Wagner, 101 Nev. 226, 699 P.2d 110 (1985). It is for this
reason that we analyze in some detail the three criminal schemes which plaintiff has set
forth in support of his RICO claim. We conclude that Hale has failed to charge the requisite
predicate crimes and thus fails to state a claim upon which relief can be granted.
[Headnote 3]
Presumably (although not specifically charged) the predicate crimes upon which the
RICO cause of action is based are violations of NRS 205.3S0, obtaining money, property or
labor under false pretenses.
104 Nev. 632, 637 (1988) Hale v. Burkhardt
violations of NRS 205.380, obtaining money, property or labor under false pretenses. A false
pretense is a representation of some fact or circumstance which is not true and is calculated to
mislead; it may consist of any words or actions intended to deceive. Buckner v. State, 95 Nev.
117, 590 P.2d 628 (1979).
The principal defect in Hale's pleading is that no false pretense is averred. In reading each
of the three supposedly criminal schemes set forth in the complaint, we are unable to
determine just what, if any, untrue representations Burkhardt is charged with having
criminally made to Hale. Even where conclusory statements hint at what might relate to some
kind of misrepresentation, the statements are so lacking in content as to render them
unintelligible as accusatory averments. Absent allegations of false pretenses, pleading of the
so-called predicate crimes is jurisdictionally deficient, and Hale is not entitled to any RICO
relief under this pleading.
Even had the narration of the three supposed schemes stated the elements of a false
pretenses crime and thus charged criminal violation of NRS 205.380, the pleading lacks the
kind of specificity that is called for in making such allegations. Not only is there a basic
failure to articulate any misrepresentation on the part of respondents, there is no information
provided in the complaint as to when, where or how such false representations are claimed to
have been made.
[Headnote 4]
The federal courts have demanded specificity in pleading the racketeering acts in a civil
RICO cause of action. For example, the court in Bache Halsey Stuart Shields v. Tracy Collins
Bank, 558 F.Supp. 1042 (C.D. Utah 1983), ruled that the factual basis of acts of
racketeering must be set out with particularity. Bache Halsey, 558 F.Supp. at 1045-46; see
also Bamco 18 v. Reeves, 675 F.Supp. 826 (S.D.N.Y. 1987); Banco de Desarrollo
Agropecuario v. Gibbs, 640 F.Supp. 1168 (S.D.Fla. 1986); Laterza v. American Broadcasting
Co., Inc., 581 F.Supp. 408 (S.D.N.Y. 1984). As in federal jurisprudence, an action brought
under NRS 207.470, although civil in nature, nevertheless may involve the pleading of
racketeering-related predicate crimes; and there is no reason the requirement of pleading with
particularity should not apply in state actions just as it does in the federal context.
In addition to recognizing the quasi-criminal nature of the civil RICO cause of action, the
court in Bache Halsey expressed two other reasons for its insistence on specificity in a civil
RICO pleading. First, the courts need sufficient facts in the pleading to enable them to
distinguish between well founded and frivolous claims in order to prevent the
overenthusiastic use of RICO.
104 Nev. 632, 638 (1988) Hale v. Burkhardt
Second, and of equal importance, such specificity is necessary to enable the RICO defendant
to prepare a defense against a treble damages claim.
While Nevada has yet to deal with the explosion of RICO litigation experienced in the
federal courts, we nevertheless have a present concern that civil RICO actions be pleaded
with sufficient specificity because of the very serious consequences attached to the allegations
of criminal conduct that are the essence of this kind of law suit. Not only is a civil RICO
defendant accused of committing a criminal offensewhich carries with it the potential for
considerable social stigmasuch a defendant is also confronted with the possibility of an
adverse treble damages judgment.
Because the present civil RICO action, despite its fundamentally civil nature, (1) involves
pleading the commission of racketeering-related crimes and (2) permits the levy of serious
punitive consequences, the same degree of specificity is called for as in a criminal indictment
of information. A civil RICO pleading must, in that portion of the pleading which describes
the criminal acts that the defendant is charged to have committed, contain a sufficiently
plain, concise and definite statement of the essential facts such that it would provide a
person of ordinary understanding with notice of the charges. Cf. NRS 173.075(1); Shapely v.
State, 93 Nev. 184, 561 P.2d 1339 (1977).
[Headnote 5]
In examining the three schemes that are offered by Hale to show that Burkhardt had
engaged in crimes relating to racketeering, we have no difficulty in coming to the conclusion
that, in this area of pleading, Hale has failed to state a claim upon which RICO relief can be
granted.
5

We now undertake a scheme by scheme inspection of Hale's attempt to levy criminal
charges against Burkhardt and conclude that none of these charges contains either the
essential elements of the crime of obtaining money, property or labor under false pretenses
nor do they possess the conciseness and definiteness that would provide a person of ordinary
understanding with proper notice of the charges.
Scheme A: The Liberty Center Transaction
In Scheme A, Hale begins by alleging that Burkhardt breached an oral agreement under
which Hale agreed to help Burkhardt acquire certain real estate in return for some kind of
unspecified monetary payment.
____________________

5
We do not express an opinion on the sufficiency of other aspects of Hales' RICO claim and hold only that
the pleading fails its attempt to charge the necessary predicate crimes.
104 Nev. 632, 639 (1988) Hale v. Burkhardt
unspecified monetary payment. According to Hale, Burkhardt's breach of contract was carried
out pursuant to a scheme by Burkhardt to obtain Hale's services by means of some
unspecified fraud or false pretense.
Assuming that Hale is referring to the crime of obtaining something of value by false
pretenses, we look to NRS 205.380. The elements of a violation of NRS 205.380 are as
follows: (1) intent to defraud; (2) a false representation; (3) reliance on the false
representation; and (4) that the victim be defrauded. Bright v. Sheriff of Washoe County, 90
Nev. 168, 521 P.2d 371 (1974). Of course, the failure to allege any one of these elements with
the required specificity would defeat the entire criminal charge. For the purposes of this
opinion, we need only examine Hale's allegations regarding the second elementthat a false
representation was madeto find that Hale has not stated a cognizable criminal offense.
Hale's complaint states in vague and conclusory fashion that Burkhardt used false or
fraudulent pretences [sic], representations or promises, and . . . knowingly and willfully
[used] untrue statements of material facts to induce Hale to perform services in the amount
of $182,250.00. But Hale entirely fails to allege any specific false representations upon which
he may have relied and that might have caused him to be defrauded. All the complaint says is
that Burkhardt made an oral promise to pay Hale for his services and that Hale now claims
that he has not been paid; it does not allege any specific false representations by Burkhardt.
Hale's failure to state the nature or content of any concrete representations, and his failure to
describe the context in which any representations might have been made, is fatal to this
portion of his complaint.
[Headnote 6]
We recognize that a promise made without intention to perform might constitute a false
representation of a state of mind, Balsamo v. Sheriff, 93 Nev. 315, 565 P.2d 650 (1977), but
Hale does not allege that Burkhardt entered into the agreement while having no intention to
perform. Hale only states that Burkhardt assented to and represented that the agreement was
accepted by [Burkhardt], which is to say only that Burkhardt was a party to the agreement.
6
We therefore conclude that the allegations contained in "Scheme A" do not contain the
essential elements of the crime of false pretenses, or any other crime, nor are the facts
stated, stated with the particularity required for pleading a racketeering-related crime.
____________________

6
Hale also charges that Burkhardt's refusal to pay Hale was the culmination of a scheme . . . to obtain the
value of Plaintiff's services by means of false pretense, by inducing Plaintiff to continue work . . . with the intent
of refusing . . . to pay Plaintiff. (Emphasis supplied.) If indeed at some time during Hale's continuing work on
the project, Burkhardt formulated an intent not to pay Hale, such a decision might ripen into a breach of contract
(as
104 Nev. 632, 640 (1988) Hale v. Burkhardt
We therefore conclude that the allegations contained in Scheme A do not contain the
essential elements of the crime of false pretenses, or any other crime, nor are the facts stated,
stated with the particularity required for pleading a racketeering-related crime.
Scheme B: The Capital Group Transaction
Hale alleges a second criminal scheme in his complaint which centers around what he calls
the Capital Group Transaction. Hale alleges that this second scheme is similar in nature to
the Liberty Center scheme discussed above. We find it even more difficult, however, to
ascertain from Hale's complaint what, if any, crimes Burkhardt engaged in with regard to this
second scheme. Again, in this section of his complaint Hale does not provide any citations to
criminal statutes relevant to the underlying predicate crime.
Even if we again take the liberty of assuming that Hale's allegations in this portion of the
complaint were meant to establish that Burkhardt violated NRS 205.380, we again find the
allegations sorely lacking in substance. The complaint's description of this supposed
scheme consists of a disjointed series of vague allegations lacking in overall coherence. It
alleges that Burkhardt breached the terms of a contract with the Capital Group, primarily by
refusing to pay for the Capital Group's expenses and services and charges that Burkhardt
engaged the services of one Pamela van Cleave, directly and on terms adversarial to the
exclusive contract with the Capital Group. It further describes, based upon information and
belief, several allegedly fraudulent statements made by Burkhardt. For example, it alleges
that the Defendants fraudulently represented to Douglas Gowan and the Capital Group, Inc.
as well as to numerous [unnamed] other parties, that PRESTON HALE was the real estate
agent who would lease [Liberty Center] and further, Defendants fraudulently used Plaintiff's
name with various [unnamed] lenders for credit enhancement and to lend credibility to the
Liberty Center Project all to the detriment of Plaintiff PRESTON HALE . . . in order to obtain
money or property by false pretenses.
Scheme B fails, however, to inform the reader as to what relationship there might be
between Burkhardt's alleged breach of the contract and the charged, but unspecified, false
representations, or the circumstances surrounding the false representations.
____________________
claimed in Hale's first cause of action) but does not constitute fraud absent some allegation as to what fraudulent
words or conduct induced Hale to continue work.
104 Nev. 632, 641 (1988) Hale v. Burkhardt
Likewise, this part of the complaint fails to reveal the identity of the parties to whom the
misrepresentations were made, or who was actually defrauded, much less how much ill gotten
gain resulted from the supposed deception.
7
Even worse, this portion of the complaint fails
to specify the requisite elements of NRS 205.380: (1) intent to defraud; (2) a false
representation; (3) reliance on the misrepresentation; and (4) that the victim was defrauded.
See Bright, 90 Nev. at 170, 521 P.2d at 372. The closest Hale comes to pleading properly
these elements of the crime of obtaining money, property or labor by false pretenses is the
mere conclusory allegation that Burkhardt fraudulently represented . . . that . . . HALE was
the real estate agent who would lease [Liberty Center.] As did the trial court, we decline to
read into this statement the missing factual allegations necessary to plead the commission of a
predicate crime. Finally even if these allegations had contained the elements of a cognizable
racketeering-related crime, the allegations in the complaint do not begin to approach the level
of specificity or coherence required in setting forth the elements of a predicate crime upon
which a RICO claim can be based.
Scheme C: The Downtown Development Security Transaction
and the Riverside Security Transaction
[Headnote 7]
Hale's allegations of a third criminal scheme share the opacity of the preceding two
schemes. These alleged criminal transactions are presented to the court simply by stating that
Burkhardt is a defendant in an action in St. Louis, Missouri regarding fraud in the sale of
securities, mail fraud, and wire fraud and that a copy of the RICO section of the complaint is
attached for the Court's review to establish that Defendant JOE E. BURKHARDT has
engaged in a pattern of racketeering activity to obtain possession of money or property valued
at $100.00 or more by means of false pretenses on numerous occasions. Remaining
allegations relative to these transactions are on information and belief and add little or
nothing to the conclusory statements that Burkhardt is guilty of federal cries of fraud in
securities sales, mail fraud and wire fraud.
To determine which, if any, or the factual allegations in Scheme C state cognizable
criminal charges would require that we accept Hale's invitation to parse the attached
seventy-five-page federal complaint attached to his complaint. As we believe that the trial
court properly declined this invitation to distill some kind of a criminal charge from the
mentioned federal lawsuit, we also decline to do so.
____________________

7
There is one reference, however, to $32,000.00 in fees owed by Burkhardt for loans placed with Nevada
National Bank by the Capital Group. No explanation is provided as to precisely how this alleged debt is related
to the racketeering activity alleged by Hale.
104 Nev. 632, 642 (1988) Hale v. Burkhardt
believe that the trial court properly declined this invitation to distill some kind of a criminal
charge from the mentioned federal lawsuit, we also decline to do so.
Conclusion
In order to state a claim upon which relief can be granted, based upon allegations that
Burkhardt engaged in racketeering activity, Hale must properly plead that Burkhardt engaged
in at least two crimes related to racketeering. See NRS 207.390. This Hale has completely
failed to do. While several of the schemes appear to suggest some of the elements of
cognizable racketeering-related crimes, none is sufficiently coherent or complete as to enable
this court to determine the specific crimes Burkhardt is charged with having committed.
We note in closing that Hale's RICO cause of action does not fail because of any purely
technical deficiency, such as the omission of citations to the criminal statutes relating to the
criminal charges against Burkhardt. Nor is it defeated by simple failure to measure up to the
standards of specificity discussed earlier. It suffers from a combination of these defects, but
principally from a failure to state the necessary elements of the predicate crimes of obtaining
money or property or labor by means of any specified false pretenses or misrepresentations.
Having determined that Hale's fourth cause of action fails to state a claim upon which
relief can be granted, we conclude that the trial court correctly dismissed Hale's civil RICO
claims; therefore, we affirm the judgment of the trial court.
____________
104 Nev. 642, 642 (1988) O'Hara v. State ex rel. Pub. Emp. Ret. Bd.
RICHARD O'HARA, Appellant, v. THE STATE OF NEVADA, EX REL. PUBLIC
EMPLOYEES RETIREMENT BOARD, Respondent.
No. 18548
November 22, 1988 764 P.2d 489
Appeal from judgment. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
The district court concluded that husband did not have the right to direct the disposition of
retirement benefits due employee wife, and husband appealed. The Supreme Court held that
employee's selection of retirement option was not an improper transfer of community
property voidable at insistence of surviving spouse.
Affirmed.
104 Nev. 642, 643 (1988) O'Hara v. State ex rel. Pub. Emp. Ret. Bd.
Lovell, Bilbray & Potter, and David M. Schieck, Las Vegas, for Appellant.
Brian McKay, Attorney General, Scott W. Doyle, Deputy, Carson City, for Respondent.
1. Husband and Wife.
Retirement benefits are generally divisible as community property to the extent they are based on services
performed during marriage whether or not benefits are presently payable.
2. Husband and Wife.
Employee wife's selection of retirement option, which paid maximum monthly benefit available, but
which did not provide for residuary payments to a beneficiary upon her death, did not defeat husband's
interest in retirement fund and thus was not an improper transfer of community property voidable at
husband's insistence when employee predeceased her husband.
OPINION
Per Curiam:
1

This is an appeal from that part of a district court judgment concluding that appellant,
Richard O'Hara, did not have the right to control, designate, or otherwise direct, the
disposition of retirement benefits due his spouse, Dorothy O'Hara.
Prior to her retirement from the Clark County School District, Dorothy O'Hara selected a
retirement option pursuant to NRS 286.551 after discussing the decision with appellant. The
option she selected paid the maximum monthly benefit available, but did not provide for
residuary payments to a beneficiary upon her death. Dorothy selected that option because she
believed it was more likely that she would outlive appellant. Unfortunately, Dorothy
predeceased appellant, dying less than two months after retiring.
[Headnotes 1, 2]
Appellant contends that Dorothy's selection of a retirement option without his consent was
an improper transfer of community property and voidable at his insistence. See, e.g., Marvin
v. Marvin, 557 P.2d 106, 115 (Cal. 1976). Retirement benefits are generally divisible as
community property to the extent that they are based upon services performed during the
marriage, whether or not the benefits are presently payable. Forrest v. Forrest, 99 Nev. 602,
607, 66S P.2d 275, 279 {19S3).
____________________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request, 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 October 17, 1988.
104 Nev. 642, 644 (1988) O'Hara v. State ex rel. Pub. Emp. Ret. Bd.
Nev. 602, 607, 668 P.2d 275, 279 (1983). However, community property interests of a
nonemployee spouse do not limit the employee's freedom to agree to terms of retirement
benefits. See In re Marriage of Brown, 544 P.2d 561, 568 (Cal. 1976). The retirement
program is based upon actuarial principles and its rules must be strictly enforced to ensure
that funds will be available in the future. An employee spouse may select among retirement
options so long as the community property interest of the nonemployee spouse is not
defeated. See Willis v. Bd. of Admin., Pub. Emp. Retire., 226 Cal.Rptr. 567 (Cal.Ct.App.
1986). In this case, Dorothy based her selection of a retirement option on her belief that
appellant would predecease her. Though Dorothy was wrong, her selection did not defeat
appellant's interest in the retirement fund. But for her death appellant would have enjoyed the
benefits of her selection. Therefore, we conclude that Dorothy's selection was not an improper
transfer of community property voidable at the insistence of appellant. According, the
judgment of the district court is affirmed.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 644, 644 (1988) Goldman v. Bryan
THE HONORABLE PAUL S. GOLDMAN, DISTRICT JUDGE, EIGHTH JUDICIAL
DISTRICT COURT, CLARK COUNTY, NEVADA, Appellant, v. RICHARD H. BRYAN,
GOVERNOR OF THE STATE OF NEVADA, Respondent.
No. 18259
THE HONORABLE PAUL S. GOLDMAN, DISTRICT JUDGE, EIGHTH JUDICIAL
DISTRICT COURT, IN AND FOR THE COUNTY OF CLARK, STATE OF NEVADA,
Appellant, v. THE NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
No. 18326
November 28, 1988 764 P.2d 1296
Consolidated motions to disqualify justices.
District judge was removed from his office by the Commission on Judicial Discipline. He
appealed that decision and the denial of writ of mandamus by the district court and, sought to
disqualify two Supreme Court justices from sitting in review of the merits of his appeals.
104 Nev. 644, 645 (1988) Goldman v. Bryan
merits of his appeals. The Supreme Court, David Zenoff, Senior Justice, held that the district
judge's failure to demonstrate any legal cognizable grounds of implied or actual bias and
prejudice attributable to the justices required that the challenges be denied.
Motions denied.
Frank J. Cremen, Las Vegas, for Appellant.
Brian McKay, Attorney General, William Isaeff, Chief Deputy Attorney General, Carson
City, for Respondent Governor Richard Bryan.
Eugene J. Wait, Jr., Reno, for Respondent Nevada Commission on Judicial Discipline.
1. Judges.
A judge has as great an obligation not to disqualify himself, when there is no occasion to do so, as he has
to do so in the presence of valid reasons.
2. Judges.
A judge or justice is presumed not to be biased, the burden is on the party serving a challenge to establish
sufficient factual grounds warranting disqualification.
3. Judges.
Motion to disqualify a justice of the Supreme Court on the ground of implied bias was insufficient, where
movant set forth no facts that supported a reasonable inference that the justice entertained implied bias
against movant. NRS 1.225, subd. 2.
4. Judges.
Justice of State Supreme Court was not disqualified from hearing appeal on the ground of acutal bias or
prejudice, where the only evidence appellant presented was a letter written by the justice, which did refer to
the proceedings in which appellant was involved, but did not express an opinion as to the merits or
correctness of those proceedings. NRS 1.225.
5. Judges.
It was within the purview of a justice of the Supreme Court, in the exercise of his proper official function,
to attempt to disabuse concerned members of the judiciary of incorrect beliefs as to procedures of the
Supreme Court, in case in which a judge had been relieved of duties, by writing a letter to the president of
the State District Judges Association, and such was not an improper public statement. Nev. Code of Jud.
Conduct, Canons 3A(6), 7B(1)(c).
6. Judges.
Appellant's bare allegation that a justice of the State Supreme Court had an interest in the proceedings
creating an implied bias was insufficient to warrant disqualification, where appellant advanced no facts or
legal arguments to support the allegation. NRS 1.225, subd. 2.
7. Judges.
Justice of the Supreme Court was not disqualified from hearing appeal, on the grounds of actual bias or
prejudice, because of certificate in lieu of record the justice had executed, as part of his
official capacity, with respect to prior order in the case, which contained no facts that
demonstrated the justice lacked impartiality or had a fixed opinion on the merits of
appellant's appeal; further, the judge who entered the judgment presently appealed
from had refused to consider the certificate, so that judgment was not based on
"material" evidence offered by the justice.
104 Nev. 644, 646 (1988) Goldman v. Bryan
in lieu of record the justice had executed, as part of his official capacity, with respect to prior order in the
case, which contained no facts that demonstrated the justice lacked impartiality or had a fixed opinion on
the merits of appellant's appeal; further, the judge who entered the judgment presently appealed from had
refused to consider the certificate, so that judgment was not based on material evidence offered by the
justice. NRS 1.225; NRAP 10(c),(e); Nev. Code of Jud.Conduct, Canons 3, 3C(1)(b).
8. Judges.
Even in the absence of a specific constitutional or statutory authorization, under its general power of
superintendence, Supreme Court may exercise its administrative authority to conduct an inquiry into a
judge's judicial capacity and take such action as is deemed necessary, short of removal of a judge from
office. Const. art. 6, 19.
9. Courts.
The Supreme Court's power, through its chief justice, to administer justice in the court system in the state,
under the State Constitution, necessarily implies the inherent power to conduct a reasonable inquiry and
investigation to determine whether an emergency of sufficient magnitude necessitates temporary
reapportionment of the public's judicial business by directing reassignment of business from one district
judge to other district judges. Const. art. 6, 19, subd. 1.
10. Judges.
Litigant will not be permitted, through legally insufficient and unfounded allegations of bias, to disqualify
justices of the Supreme Court. Const. art. 6, 4, 21, subd. 1.
OPINION
By the Court, Zenoff, Sr. J.:
1

These are separate appeals from an order of the district court denying appellant's petition
for a writ of mandamus (Docket No. 18259), and a decision of the Nevada Commission on
Judicial Discipline removing appellant from his judicial office for willful misconduct and
habitual intemperance (Docket No. 18326). Appellant has moved to disqualify Justice Young
and Justice Steffen from sitting in review of the merits of these appeals. On October 4, 1988,
this court entered an order consolidating these matters for the sole purpose of resolving
appellant's motions. Further, in the order of October 4, 1988, both Justices Young and Steffen
noted their opposition to appellant's motions and stated that they harbored no animus, bias or
prejudice toward appellant whatever. Accordingly, the justices determined that they could
not properly disqualify themselves from the proceedings in question, and ordered that a
hearing be held before an independent panel of unchallenged Nevada judges.
____________________

1
Pursuant to orders of this court entered September 14, 1988, and October 4, 1988, Senior Justice David
Zenoff presided over the court's resolution of appellant's motions, in the place of Chief Justice E. M. Gunderson.
See also Nev. Const. art. 6, 19(1)(a) and 19(1)(c), and SCR 10.
104 Nev. 644, 647 (1988) Goldman v. Bryan
they could not properly disqualify themselves from the proceedings in question, and ordered
that a hearing be held before an independent panel of unchallenged Nevada judges.
Subsequently, pursuant to that order, a hearing on appellant's motions was conducted on
November 16, 1988, before the undersigned senior justice and district judges, against whom
the parties have tendered no challenges respecting bias or partiality. See NRS 1.225(4).
Having heard and considered the arguments of counsel, and for the reasons set forth below,
we hereby deny appellant's motions.
FACTS
On October 19, 1986, in accordance with Article 6, 19(1) of the Nevada Constitution,
then Chief Justice John C. Mowbray, with the unanimous endorsement of the other justices of
the Nevada Supreme Court, entered an Administrative Order which provided as follows:
2

It appearing appropriate to the administration of justice, it is hereby:
ORDERED that, until further order of this Court, the Honorable Paul S. Goldman,
District Judge, shall not hear consider or decide any matter of any kind, whether civil or
criminal, contested or uncontested, in court or in chambers, and shall not otherwise
exercise any of his judicial prerogatives, except as hereinafter provided. Nev. Const.,
art. 6, 19(1).
FURTHER ORDERED that, as necessary to accommodate the interests of justice,
the Chief Judge of the Eighth Judicial District Court shall reassign to other judges of
the District any cases now assigned for trial or hearing before the Honorable Paul S.
Goldman.
3
The court's administrative order was entered in response to a series of
events culminating in appellant's issuance of an unlawful order jailing a Las Vegas
metropolitan police commander, purportedly for contempt of court.
____________________

2
Nev. Const. art. 6, 19(1) provides in part that [t]he chief justice is the administrative head of the court
system.

3
We observe that, thereafter, appellant never formally challenged or requested the court to rescind its
administrative order, under which appellant continued to collect his full salary and receive the emoluments of his
office, and remained at liberty to use his chambers and any staff support to which he was entitled by virtue of his
position. Thus, contrary to appellant's assertion, the order did not purport to suspend or remove appellant
from his elected position, but merely reapportioned the public's judicial business in the interest of the
administration of justice, and directed the Chief Judge of the Eighth Judicial District Court to reassign such
business to other district judges as [was] necessary to accommodate the interest of justice. This we think Chief
Justice Mowbray, with the concurrence of the other justices clearly was entitled to order under the
circumstances, pursuant to their constitutionally granted authority to administer the court system.
104 Nev. 644, 648 (1988) Goldman v. Bryan
The court's administrative order was entered in response to a series of events culminating
in appellant's issuance of an unlawful order jailing a Las Vegas metropolitan police
commander, purportedly for contempt of court. See Cunningham v. District Court, 102 Nev.
551, 729 P.2d 1328 (1986). Additionally, the supreme court's order followed the receipt of
appellant's letter of October 16, 1986, advising then Chief Justice Mowbray:
Pursuant to Article Six of the Nevada Constitution, I hereby ask the Court to
temporarily relieve me of my responsibility to act on any matters presently pending
before me.
On October 30, 1986, appellant directed a letter to Governor Richard Bryan, advising the
Governor of his desire to tender a formal notice of retirement pursuant to the provisions of
NRS 3.092(3).
4
Appellant asserted that he was permanently incapacitated for medical
reasons to perform the duties of his office, and requested the Governor to appoint three
physicians to examine him in accordance with that provision. Subsequently, however, the
Attorney General of the State of Nevada advised the Governor that complaints respecting
appellant's performance in office were pending or impending against appellant before the
Nevada Commission on Judicial Discipline. See Nev. Const. art. 6, 21 (authorizing the
commission to determine the question of a judge's entitlement to permanent disability
retirement). Upon receipt of that information, the Governor thereafter refrained from
exercising his authority pursuant to NRS 3.092(3) and, instead, deferred to the commission's
jurisdiction over the question of appellant's entitlement to disability status.
On April 22, 1987, appellant filed a petition for a writ of mandamus in the First Judicial
District Court seeking to compel the Governor to appoint the requested medical panel. During
the proceedings that followed in the district court, the Governor attempted to introduce, as
evidence in support of the various defenses raised to appellant's petition, a document
executed by Justice Steffen entitled, Certificate In Lieu of Record. As discussed below, in
that document, Justice Steffen formally certified and described certain facts, in lieu of a
record of the court's inquiry which preceded its administrative order of October 19, 1986. See,
e.g., NRAP 10(c),(e) (in the absence of a report of the evidence or proceedings, a statement of
the evidence or proceedings may be certified in lieu of a record).
____________________

4
NRS 3.092(3) provides in part that any judge who desires to retire voluntarily shall notify the Governor who
shall appoint three physicians to conduct an examination and to report their opinions as to whether the judge is
permanently incapacitated, mentally or physically.
104 Nev. 644, 649 (1988) Goldman v. Bryan
or proceedings may be certified in lieu of a record). Appellant primarily bases the instant
challenge to Justice Steffen's impartiality upon the facts disclosed in the certificate in lieu of
record.
Appellant's challenge to Justice Young's impartiality is primarily based on the facts
contained in a letter written by Justice Young on May 14, 1987. The letter was in response to
an inquiry from Justice Young's brother, District Judge Llewellyn A. Young (President of the
Nevada District Judges Association), concerning the history leading up to the court's
administrative order of October 19, 1986. As set forth below, we conclude that neither the
facts disclosed in the certificate in lieu of record, nor in Justice Young's letter, are sufficient
to establish legally cognizable grounds warranting the disqualification of Justice Young or
Justice Steffen from these proceedings.
DISCUSSION
[Headnotes 1, 2]
At the outset, we observe that a judge has as great an obligation not to disqualify himself,
when there is no occasion to do so, as he has to do so in the presence of valid reasons.
Amidon v. State, 604 P.2d 575, 577 (Alaska 1979), citing In Re Union Leader Corp., 292
F.2d 381, 391 (1st Cir. 1961), cert. denied, 368 U.S. 927. Thus, this court has previously held
that a judge has a duty to preside . . . in the absence of some statute, rule of court, ethical
standard, or other compelling reason to the contrary. See Ham v. District Court, 93 Nev.
409, 566 P.2d 420 (1977); see also United States v. Diorio, 451 F.2d 21, 24 (2d Cir. 1971),
cert denied, 405 U.S. 955 (1972); Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968);
Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966). Moreover, where, as here, a judge
or justice determines that he may not voluntarily disqualify himself, his decision should be
given substantial weight, and should not be overturned in the absence of a clear abuse of
discretion. See United States v. Haldeman, 559 F.2d 31, 139 (D.C.Cir. 1976), cert. denied,
431 U.S. 933 (1977); Amidon, 604 P.2d at 577. Further, under these circumstances, a judge or
justice is presumed not to be biased, and the burden is on the party asserting the challenge to
establish sufficient factual grounds warranting disqualification. Ritter v. Bd. of Com'rs of
Adams County, Etc., 637 P.2d 940, 946 (Wash. 1981). With these general principles in mind,
we turn to an analysis of the factual allegations of bias that appellant has tendered against
each justice.
I. CHALLENGE TO JUSTICE YOUNG
[Headnote 3]
First, appellant's motions urge the disqualification of Justice Young on the ground of
"actual bias and prejudice andJor implied bias."
104 Nev. 644, 650 (1988) Goldman v. Bryan
Young on the ground of actual bias and prejudice and/or implied bias. Under NRS
1.225(2), disqualification of a justice of the supreme court on the ground of implied bias is
warranted where (1) a justice is a party to or interested in the action or proceeding; (2) a
justice has been counsel to a party in the particular proceeding; or (3) a justice is related to a
party or an attorney for a party in the proceeding. Appellant has set forth no facts supporting a
reasonable inference that Justice Young entertains implied bias against appellant as defined
by NRS 1.225(2). Consequently, we conclude that appellant has failed to state a legally
cognizable challenge to Justice Young on that ground. See, e.g., State v. Logan, 689 P.2d 778,
783 (Kan. 1984) (where no factual grounds are alleged in support of an opinion or belief that
bias exists, the challenge states no legally cognizable ground for disqualification).
[Headnote 4]
Second, appellant asserts that Justice Young should be disqualified for actual bias and
prejudice pursuant to the provisions of NRS 1.225 and the Nevada Code of Judicial Conduct
Canon 3. Appellant maintains that the facts disclosed in a letter authored by Justice Young
demonstrate that Justice Young has taken a position adverse to appellant on the merits of
these appeals. Specifically, appellant asserts that in his letter, Justice Young defended
actions taken against [appellant] and voiced an opinion as to the correctness of those
actions. Thus, appellant maintains that Justice Young's impartiality might reasonably be
questioned. We disagree.
[Headnote 5]
Initially, we note that the letter in question must be viewed in the context of the
circumstances and events under which Justice Young felt constrained to write. As noted,
Justice Young's letter was written in response to an inquiry from his brother, District Judge
Llewellyn A. Young (President of the Nevada District Judges Association), indicating that
certain misconceptions had been fostered within the Nevada judiciary respecting the entry of
the supreme court's administrative order of October 19, 1986, providing that temporarily
appellant should not perform adjudicatory functions. We consider it within the purview of the
justices of the supreme court, in the exercise of their proper official functions, to attempt to
disabuse concerned members of the Nevada judiciary of incorrect beliefs that had been
fostered among them respecting the procedures of the court. Cf. Nev. Code of Judicial
Conduct Canon 3A(6) (a judge is not prohibited from making public statements in the course
of his judicial duties or from explaining for public information the procedures of the court);
see also Nev. Code of Judicial Conduct Canon 7B(1)(c) {a judge may answer allegations
directed against his record in office).
104 Nev. 644, 651 (1988) Goldman v. Bryan
(a judge may answer allegations directed against his record in office).
In our view, the letter in no manner expressed an opinion as to the merits or the outcome
of any ongoing proceedings in which appellant was involved. Specifically, it contains
absolutely no expression of opinion as to the merits of the pending appeal from Judge Fondi's
decision in favor of respondent Governor Bryan. Additionally, the letter provides no factual
support for appellant's conclusory allegations that Justice Young expressed or possessed an
opinion as to the correctness of the commission's rulings, that he defended those rulings in his
letter, or that he had formed an opinion on what those rulings should be. The letter simply
relates facts that came to the attention of the justices through the judicial process and in
connection with the court's constitutional obligation, through its Chief Justice, to administer
the judicial system in this state. See Nev. Const. art. 6, 19; see also Nev. Code of Judicial
Conduct Canon 3B(1) and (3) (a judge should facilitate performance of administrative
responsibilities of other judges and should report serious unprofessional conduct of a judge to
appropriate disciplinary body). Accordingly, we conclude that appellant has failed to allege or
specify sufficient legally cognizable facts warranting Justice Young's disqualification on the
grounds of actual bias or prejudice. See United States v. Grinnell Corp., 384 U.S 563, 583
(1966) (alleged bias must stem from an extrajudicial source).
II. CHALLENGE TO JUSTICE STEFFEN
[Headnote 6]
First, appellant contends that Justice Steffen should be disqualified on the ground of
implied bias. Specifically, appellant asserts that Justice Steffen could be viewed as having an
interest in the proceeding now on appeal, requiring his disqualification under NRS 1.225.
Appellant, however, advances no further facts or legal argument whatsoever in his motions,
or in his affidavits, in support of this allegation of implied bias. As Governor Bryan and the
commission both contend, appellant's unsupported and conclusory allegation is legally
insufficient to warrant disqualification. See State v. Logan, supra; State v. Scarborough, 410
P.2d 732, 734 (N.M. 1966) (disqualifying interest must be a present interest in the outcome
of the proceeding, not some indirect, remote, speculative, theoretical or possible interest);
see also United States v. Haldeman, 559 F.2d 31, 137 (D.C.Cir. 1976) (a disqualifying
interest must emanate from an extrajudicial source and no cognizable disqualifying interest is
demonstrated by mere allegation that a judge has developed a personal stake in the
conviction of various defendants).
104 Nev. 644, 652 (1988) Goldman v. Bryan
developed a personal stake in the conviction of various defendants). We conclude, therefore,
that appellant's motions and affidavits are insufficient, as a matter of law, to establish that
Justice Steffen should be disqualified from these proceedings on the ground of implied bias.
[Headnote 7]
Second, appellant maintains that Justice Steffen should be disqualified on the grounds of
actual bias or prejudice. As noted, appellant bases his contentions respecting actual bias and
prejudice upon a document executed by Justice Steffen entitled, Certificate In Lieu of
Record. On its face, however, that document contains no facts demonstrating that Justice
Steffen lacks impartiality or possesses fixed opinions on the merits of these appeals. See
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). The only fixed opinion expressed
in the certificate is Justice Steffen's statement that no commitment could be made to appellant
that his temporary departure from his duties would foreclose further proceedings respecting
appellant's fitness for office. It cannot reasonably be said that such an opinion gives fair
support to the charge of a bent of mind that may prevent or impede impartiality of judgment.
See Berger v. United States, 255 U.S. 22, 33-34 (1921).
Appellant also contends, in support of his allegation of actual bias, that because Justice
Steffen authored the certificate in lieu of record, Justice Steffen's impartiality might
reasonably be questioned and therefore his disqualification from these proceedings is
warranted. See Nev. Code of Judicial Conduct Canon 3. In this regard, appellant asserts,
without further explanation, that an issue on appeal is the legal effect of the certificate.
Further, appellant maintains that the certificate demonstrates that Justice Steffen offered
evidence in support of the defenses raised by the Governor below. Appellant also maintains
that the certificate demonstrates that Justice Steffen has obtained knowledge of disputed
evidentiary facts at issue in these appeals. We disagree.
As noted, the certificate in lieu of record is an official document of the court promulgated
in lieu of an evidentiary record respecting administrative proceedings that culminated in the
issuance of the court's administrative order of October 19, 1987.
5
See, e.g., NRAP 10(c),(e)
(in the absence of a report of the evidence or proceedings, the parties and the court may
certify a statement of the evidence or proceedings in lieu of a record).
____________________

5
As previously noted, that order did no more than temporarily preclude appellant, who himself had
acknowledged that he was temporarily unfit for judicial service, from attempting to exercise judicial prerogatives
without gaining the approval of the court.
104 Nev. 644, 653 (1988) Goldman v. Bryan
statement of the evidence or proceedings in lieu of a record). Further, after appellant objected
to the admission of the certificate below, which was offered by respondent Governor Bryan as
evidence, Judge Fondi sustained appellant's objection and refused to consider the document.
Thus, appellant has failed to demonstrate that the judgment below was based on material
evidence offered by Justice Steffen. See Nev. Code of Judicial Conduct Canon 3C(1)(b).
Additionally, the matters set forth in the certificate clearly demonstrate that Justice Steffen
had been engaged in an official inquiry on behalf of the court, relating to the supreme court's
official responsibilities to see that litigation is properly processed and decided, and Justice
Steffen was therefore acting in an official administrative and judicial capacity. The general
rule of law is that what a judge learns in his official capacity does not result in
disqualification. See Smith v. District Court For Fourth Judicial Dist., 629 P.2d 1055, 1057
(Colo. 1981).
6
The facts contained in Justice Steffen's certificate in lieu of record
demonstrate, at most, an awareness of facts acquired through his participation in related
judicial and administrative proceedings. Therefore, appellant's motions and affidavits allege
no facts supporting a reasonable inference of bias stemming from an extrajudicial source. See
United States v. Haldeman, 559 F.2d at 133 n.301. Consequently, we conclude that appellant
has failed to establish legally cognizable grounds for Justice Steffen's disqualification under
NRS 1.225 or the Nevada Code of Judicial Conduct on the basis of actual bias or prejudice.
III. REMAINING CONTENTIONS
[Headnotes 8, 9]
Appellant also asserts that concerns over the justices' impartiality are raised by the
apparent lack of constitutional authority underlying the court's administrative inquiry into
reports raising concerns over appellant's capacity to preside over litigation impartially,
temperately, and in a manner consistent with due process of law.
____________________

2
See also United States v. Grinnell Corp., 384 U.S 563, 583 (1966) (alleged bias to be disqualifying must
stem from an extrajudicial source); United States v. Conforte, 457 F.Supp. 641, 657 (D.Nev. 1978) (the origin
of judge's impressions was inextricably bound up with judicial proceedings, thus, judge's alleged bias did not
stem from extrajudicial source), modified, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 (1980); State v.
Rome, 685 P.2d 290 (Kan. 1984) (court rejected motion to disqualify justices of supreme court under Code of
Judicial Conduct where motion was based on justices' prior involvement in litigant's removal from judicial
office); United Nuclear Corp. v. General Atomic Co., 629 P.2d 231 (N.M. 1980) (under New Mexico
constitution, as well as under Code of Judicial Conduct, alleged bias must be personal, not judicial), appeal
dismissed, 451 U.S. 901 (1981).
104 Nev. 644, 654 (1988) Goldman v. Bryan
impartially, temperately, and in a manner consistent with due process of law. Appellant
maintains that the supreme court's authority to conduct such an inquiry also presents an issue
on appeal. Contrary to appellant's allegation, there is substantial authority supporting the
proposition that even in the absence of a specific constitutional or statutory authorization,
under its general power of superintendence, a state supreme court may exercise its
administrative authority to conduct an inquiry and take such action as is deemed necessary,
short of removal of a judge from office. See Nev. Const. art. 6, 19; In re Mussman, 289
A.2d 403 (N.H. 1972); Ransford v. Graham, 131 N.W.2d 201, 203 (Mich. 1964). See also
Annotation, CourtsPower to Remove or Suspend Judge, 53 A.L.R.3d 882 (1973 & Supp.
1988).
7
Even where the court's prior judicial and administrative actions may support an
inference that the justices in question possess legal opinions at odds with appellant's views of
the court's constitutional authority, that fact does not constitute a legally cognizable ground
for disqualification. See United States v. Haldeman, 559 F.2d at 136 n.332. We conclude,
therefore, that appellant's allegations in this respect are legally insufficient to support his
motions for disqualification.
CONCLUSION
[Headnote 10]
Finally, we observe that neither the directives of NRS 1.225, nor the provisions of the
Nevada Code of Judicial Conduct, should be read to permit a litigant, through legally
insufficient and unfounded allegations of bias, to manipulate the processes of an appellate
court or to nullify the court's obligation under the constitution to review the type of
determinations challenged in these appeals. See Nev. Const. art. 6, 4 and 21(1). In State v.
Rome, 685 P.2d 290 (Kan. 1984), for example, a former judge, who had previously been
removed from his judicial office, attempted to disqualify the entire Kansas Supreme Court
from sitting in review of a subsequent decision of the Kansas Board for Discipline of
Attorneys.
____________________

7
Additionally, we note that there is substantial authority establishing that the judiciary must possess those
inherent powers that are reasonable and necessary to carry out its mandated responsibility, and its powers and
duties to administer Justice, if it is to be in reality a co-equal, independent Branch of our Government. See
Commonwealth ex rel. Carroll v. Tate, 274 A.2d 193, 197 (Pa. 1971), cert. denied, 402 U.S. 974. See also Co.
Commissioners v. Devine, 72 Nev. 57, 294 P.2d 366 (1956). In our view, the court's power, through its chief
justice, to administer justice and the court system in this state, under Article 6, Section 19(1) of the Nevada
Constitution, necessarily implies the inherent power to conduct a reasonable inquiry and investigation to
determine whether an emergency of sufficient magnitude necessitates temporary reapportionment of the public's
judicial business.
104 Nev. 644, 655 (1988) Goldman v. Bryan
sitting in review of a subsequent decision of the Kansas Board for Discipline of Attorneys.
The former judge alleged, in part, that the members of the Kansas Supreme Court should
recuse themselves because of their prior involvement in the proceedings resulting in his
removal from judicial office and because he had subsequently filed a lawsuit against the
court. The Kansas high court examined the allegations of bias, concluded that they raised no
justifiable issue, and summarily denied the request for recusal. In so doing, the Kansas court
concluded that to permit such allegations to disqualify the court from discharging its
supervisory duties over that state's bar would nullify those duties and permit manipulation
of the court. Id. at 296.
8
Similarly, in the instant proceedings, we conclude that appellant's
complete failure to demonstrate any legally cognizable grounds for disqualification demands
denial of his challenges to Justices Steffen and Young.
9

Accordingly, and in the light of the above, we hereby deny appellant's motions in Docket
Nos. 18259 and 18326 to disqualify Justices Young and Steffen from these proceedings.
Whitehead, D. J.,
10
and Robison, D. J.,
11
concur.
____________________

8
See also Tynan v. United States, 376 F.2d 761 (D.C.Cir. 1967), cert. denied, 389 U.S. 845, wherein the
court indicated that a federal statute respecting disqualification never contemplated crippling our courts by
disqualifying a judge, solely on the basis of a state of mind acquired from evidence presented in the course of
judicial proceedings before him. Any other construction would make the statute an intolerable obstruction to the
efficient conduct of judicial proceedings, now none too speedy or effective. Id. at 765, citing Craven v. United
States, 22 F.2d 605, 608 (1st Cir. 1927).

9
We note that with the exception of two citations to cases of questionable relevance to the legal issues raised
by appellant's motions, appellant cites no legal authorities which support his motions for disqualification under
the facts and provisions upon which he relies.


10
The Honorable Jerry C. Whitehead, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of Justice Springer who is disqualified. Nev. Const. art. 6, 4.

11
The Honorable Norman C. Robison, Judge of the Ninth Judicial District Court, was designated by the
Governor to sit in place of Justice Mowbray, who voluntarily disqualified himself. Nev. Const. art. 6, 4.
____________
104 Nev. 656, 656 (1988) Phelps v. Director, Prisons
CHARLES A. PHELPS, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF
PRISONS, GEORGE SUMNER, Respondent.
No. 18313
November 30, 1988 764 P.2d 1303
Appeal from an order of the district court summarily denying appellant's post-conviction
petition for a writ of habeas corpus. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Inmate petitioned for a writ of habeas corpus, claiming he received ineffective assistance
of counsel during his trial. The district court summarily denied the petition on the ground that
the inmate had waived the claim by failing to present it in an earlier petition. The inmate
appealed. The Supreme Court held that: (1) the district court erred in summarily rejecting the
inmate's petition, but (2) the inmate failed to establish sufficient cause existed for failing to
raise his claim in an earlier petition.
Affirmed.
Jeffrey M. Evans, Carson City, for Appellant.
Brian McKay, Attorney General, and Brian Hutchins, Deputy Attorney General, Carson
City, for Respondent.
1. Habeas Corpus.
The district court erred in summarily rejecting inmate's petition for writ of habeas corpus on the grounds
that inmate had waived his most recent claim of ineffective assistance of counsel by failing to present the
claim in a prior proceeding, where form of petition did not elicit sufficient facts to allow district court to
properly resolve question of waiver. NRS 34.810, subd. 2.
2. Habeas Corpus.
Though, in order to avoid dismissal of habeas corpus petition, petitioner was required to make specific
allegations regarding the reasons for his failure to raise his present claim in a prior petition, the statutory
scheme did not contemplate that such allegations would be specified on the face of the petition. NRS
34.735, 34.810, subd. 2.
3. Habeas Corpus.
The affirmative defenses of waiver or abuse of the writ must be raised by the state in response to a
post-conviction petition for a writ of habeas corpus; the court cannot make such findings from the fact of
the petition.
4. Habeas Corpus.
Burden falls upon a petitioner for a writ of habeas corpus, when the state raises the affirmative defense of
either waiver or abuse of the writ, to show either good cause for failing to raise grounds in an earlier
petition and that he will suffer prejudice if the grounds are not considered, or that the previous petition was
not decided on the mertis. NRS 34.810, subd. 2.
104 Nev. 656, 657 (1988) Phelps v. Director, Prisons
5. Habeas Corpus.
Inmate's contention, that limited intelligence and poor assistance in framing and presenting issues
prevented him from raising his most recent claim of ineffective assistance of counsel in a previous petition
for writ of habeas corpus, did not establish sufficient cause to merit consideration of inmate's present
petition. NRS 34.810, subd. 1(b).
OPINION
Per Curiam:
On May 8, 1981, pursuant to a jury verdict, appellant was convicted of one count each of
sexual assault and attempted sexual assault and two counts of lewdness with a minor under
the age of fourteen. In his direct appeal to this court, appellant challenged his conviction on
the sole grounds that the district court improperly joined the alleged offenses for trial and that
the district court erred in determining that appellant's confession was voluntary. This court
subsequently dismissed that appeal concluding that these assignments of error were without
merit. See Phelps v. State, Order Dismissing Appeal, Docket No. 13501 (filed December 20,
1983).
On April 16, 1984, appellant petitioned the district court for a writ of habeas corpus. In
that petition, appellant argued, among other things, that his trial counsel had rendered
ineffective assistance because he failed: (1) to move to suppress evidence; (2) to investigate
his case; and (3) to object to perjurious testimony. Appellant also argued that his appellate
counsel was ineffective because he failed to raise issues on appeal of judicial bias and
improper jury instructions. The district court entered an order summarily denying appellant's
petition. This court subsequently dismissed appellant's proper person appeal from that order
concluding that appellant could not demonstrate error on appeal. See Phelps v. Director,
Order Dismissing Appeal, Docket No. 15794 (filed July 20, 1984).
Appellant then pursued federal remedies. On August 15, 1984, appellant petitioned the
federal district court in proper person for a writ of habeas corpus. Appellant reasserted the
claims that he had raised in the state courts. The federal district court denied appellant's
petition, and appellant appealed to the Ninth Circuit Court of Appeals. That court appointed
counsel to represent appellant on appeal, and counsel argued that appellant's trial counsel had
rendered ineffective assistance because he presented only a pro forma opening statement
and presented no closing argument whatsoever to the jury. Because this claim had not been
raised in any of the prior proceedings, the appellate court concluded that appellant had not
exhausted his state remedies with respect to this particular claim.
104 Nev. 656, 658 (1988) Phelps v. Director, Prisons
respect to this particular claim. Accordingly, the court of appeals remanded the matter to the
federal district court so that appellant could either submit the new claim to the state courts or
revise his federal petition to include only exhausted claims.
Appellant then filed the instant petition for a writ of habeas corpus in the state district
court on April 2, 1987. Appellant's petition raised the sole contention that his trial counsel
rendered ineffective assistance by presenting an inadequate opening statement and no closing
argument to the jury. The district court summarily dismissed appellant's petition concluding
that appellant had not shown good cause for his failure to raise this argument in his prior state
petition. See NRS 34.810(1)(b) and (2). Appellant moved the court below for rehearing,
arguing that a summary dismissal was not proper. Appellant also explained his reasons for
not raising this facet of the ineffectiveness claim in his prior petition for post-conviction
relief. The district court thereafter denied the motion for rehearing, and this appeal followed.
In the instant appeal, appellant argues that the district court erred in summarily rejecting
his contentions for failure to raise those contentions in his prior petition. Specifically,
appellant asserts that a finding of waiver should rarely, if ever, be found from the face of a
post-conviction petition for a writ of habeas corpus. Instead, appellant contends that the state
should be required to plead such a waiver in its answer. See Brimage v. State, 94 Nev. 520,
582 P.2d 375 (1978); see also Vargo v. Warden, 94 Nev. 466, 581 P.2d 855 (1978); Stewart
v. Warden, 92 Nev. 588, 555 P.2d 218 (1976). In response, the state concedes that it may be
more advisable . . . to allow habeas petitioners an opportunity to demonstrate cause and
prejudice rather than to permit a summary denial. We agree.
[Headnotes 1, 2]
Summary dismissal of a petition is warranted only if it plainly appears from the face of
the petition that the petitioner is not entitled to relief; otherwise, the district court shall
order the respondent to file an answer. . . . NRS 34.740(2). The district court denied the
petition on the sole ground that appellant had waived his most recent claim of ineffective
assistance of counsel by failing to present that claim in a prior proceeding. Because such a
finding of waiver is not possible from the face of appellant's petition, we conclude that the
district court erred in summarily rejecting appellant's claim on that ground.
NRS 34.810(2) states:
A second or successive petition must be dismissed if the judge or justice determines
that it fails to allege new or different grounds for relief and that the prior
determination was on the merits or, if new and different grounds are alleged, the
judge or justice finds that the failure of the petitioner to assert those grounds in a
prior petition constituted an abuse of the writ.
104 Nev. 656, 659 (1988) Phelps v. Director, Prisons
different grounds for relief and that the prior determination was on the merits or, if new
and different grounds are alleged, the judge or justice finds that the failure of the
petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Thus, in order to avoid the dismissal of his petition pursuant to NRS 34.810(2), appellant was
required to make certain specific allegations regarding the reasons for his failure to raise the
recent claim in a prior petition. The statutory scheme, however, does not contemplate that
such allegations will be specified on the face of the petition. For example, NRS 34.735 sets
forth a form which must be followed by a petitioner in filing a post-conviction petition for a
writ of habeas corpus. The form does not allow a petitioner sufficient space to explain
adequately his failure to raise the issue in an earlier petition. Further, if a petitioner alleges the
same grounds for relief that he has alleged in a prior petition, the form set forth in NRS
34.735 does not inquire whether the prior petition was decided on its merits. Finally, NRS
34.735 directs a petitioner not to attach additional pages unless attachments are specifically
allowed by the form. In our view, the form of the petition does not elicit sufficient facts to
allow a district court to properly resolve the question of waiver from the face of the petition.
[Headnotes 3, 4]
Under these circumstances, we conclude that the legislature intended that the affirmative
defenses of waiver or abuse of the writ must be raised by the state in response to a
post-conviction petition under NRS Chapter 34. Once such an allegation is made by the state,
the burden then falls upon the petitioner to show: (1) that good cause exists for his failure to
raise any grounds in an earlier petition and that he will suffer actual prejudice if the grounds
are not considered; or (2) if no new grounds for relief are asserted, that the previous petition
was not decided on its merits. See NRS 34.810(2); Brimage v. State, supra; Vargo v. Warden,
supra. Should petitioner fail to meet this burden, the district court may then dismiss the
petition without further proceedings. By requiring the state to allege waiver as an affirmative
defense, petitioner is afforded an opportunity to meet the burden placed on him by NRS
34.810. Without such a procedure, a petitioner may never be allowed an opportunity to meet
this burden.
[Headnote 5]
Appellant was precluded from proceeding as outlined above by the summary dismissal of
his petition. In his motion below for rehearing, however, which the lower court considered
and rejected, appellant presented his reasons for previously failing to raise his claim in his
prior petition.
104 Nev. 656, 660 (1988) Phelps v. Director, Prisons
rejected, appellant presented his reasons for previously failing to raise his claim in his prior
petition. Specifically, appellant contended in his motion for rehearing that he was organically
brain damaged at birth and is borderline mentally retarded. Because of his limited
intelligence, appellant maintained that he was unable to ascertain exactly how counsel was
ineffective, although he sensed counsel was ineffective. Finally, appellant argued that he
was unable to frame and present the issues properly in his first petition because he had to rely
on the assistance of an inmate law clerk unschooled in the law.
As noted, because appellant had previously petitioned the district court for a writ of habeas
corpus, any claims not raised in that earlier petition are deemed to have been waived unless
appellant can demonstrate both cause for the failure . . . and actual prejudice. . . . NRS
34.810(1)(b). Accepting as true appellant's reasons for failing to raise this claim in his earlier
petition, we conclude that appellant has not established sufficient cause. Cf. Hughes v. Idaho
State Bd. of Corrections, 800 F.2d 905 (9th Cir. 1986) (petitioner's illiteracy and parole of
inmate law clerk do not excuse petitioner's failure to pursue state appeal). Consequently,
reversal of this matter for further proceedings is not warranted. We affirm the order of the
district court denying appellant's petition.
____________
104 Nev. 660, 660 (1988) Farmers Ins. Exchange v. Pikering
FARMERS INSURANCE EXCHANGE, dba FARMERS INSURANCE GROUP, Appellant,
v. GENE PICKERING, Respondent.
No. 18384
December 6, 1988 765 P.2d 181
Appeal from a post-judgment award of attorney's fees. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Insured brought action against insurer to recover under automobile policies. The district
court entered judgment against insurer and granted insured's motion for attorney fees. Insurer
appealed. The Supreme Court held that: (1) insured's attorney fee motion, which was made
one month after Supreme Court affirmed judgment awarding insured insurance benefits, was
timely, and (2) award of attorney fees to insured was proper since insured was prevailing
party and had not recovered more than $20,000 within meaning of attorney fee statute.
Affirmed.
104 Nev. 660, 661 (1988) Farmers Ins. Exchange v. Pikering
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Burris & Thomas, Las Vegas, for Respondent.
1. Insurance.
Insured's motion for attorney fees, which was made one month after Supreme Court affirmed judgment
awarding insured insurance benefits, was timely; attorney fee statute sets no time limits for motions for
attorney fees, and insured was diligent in seeking fees since his request was made immediately upon
completion of appellate process and as soon as he was assured that he was prevailing party within meaning
of attorney fee statute. NRS 18.010.
2. Costs.
Absent specific statutory provision in attorney fee statute governing time frame in which party must
request attorney fees, timeliness of such requests is matter left to discretion of trial court. NRS 18.010.
3. Insurance.
Award of attorney fees to insured in action to recover under automobile policy was proper; insured was
prevailing party and had not recovered more than $20,000 within meaning of attorney fee statute. NRS
18.010.
OPINION
Per Curiam:
1

Appellant Farmers Insurance Exchange (Farmers) issued to respondent Pickering three
separate policies of automobile insurance. Each policy provided $10,000 in medical benefits.
Pickering was later involved in an automobile accident and incurred medical bills of more
than $30,000. When Pickering attempted to recover medical benefits under all three of his
insurance policies, Farmers conceded coverage under only one of the policies.
Pickering sued Farmers to recover the medical benefits under the remaining two policies
of insurance, and the district court ultimately entered a judgment against Farmers in the
amount of $20,000. This court later affirmed the judgment of the district court in an
unpublished order. Pickering then filed in the district court a motion for attorney's fees
pursuant to NRS 18.010. The district court granted the motion, and awarded Pickering an
additional $5,000 in attorney's fees. This appeal followed.
[Headnotes 1, 2]
Farmers first contends that Pickering's motion for attorney's fees, which was made one
month after this court affirmed the judgment awarding Pickering insurance benefits, was
untimely.
____________________

1
This appeal was previously dismissed in an unpublished order of this court. Pursuant to a request, 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 October 13, 1988.
104 Nev. 660, 662 (1988) Farmers Ins. Exchange v. Pikering
fees, which was made one month after this court affirmed the judgment awarding Pickering
insurance benefits, was untimely. We disagree. NRS 18.010 provides no time limits for
motions for attorney's fees. Absent a specific statutory provision governing the time frame in
which a party must request attorney's fees, the timeliness of such requests, we conclude, is a
matter left to the discretion of the trial court. See White v. New Hampshire Department of
Employment Security, 455 U.S. 445, 454 (1982); White v. Kaufman, 652 P.2d 127, 129
(Ariz. 1982). We decline to apply the ten day time limit under NRCP 59(e) for motions to
amend judgments to fee requests made pursuant to NRS 18.010. As the Court noted in White
v. New Hampshire Department of Employment Security, we do not think that application of
Rule 59(e) to [attorney's] fee requests is either necessary or desirable to promote finality,
judicial economy, or fairness. 455 U.S. at 452. The trial court's discretionary power to deny
fee requests is a sufficient protection against a post-judgment motion [which] unfairly
surprises or prejudices the affected party. Id. at 454. In the present case, Pickering was
diligent in seeking fees. His request was made immediately upon completion of the appellate
processas soon as he was assured that he was the prevailing party within the meaning of
NRS 18.010(2). Further, Farmers has neither alleged nor demonstrated that Pickering's
request for fees following the appeal prejudiced or unfairly surprised appellant. Absent such a
showing, we conclude that the district court did not abuse its discretion in finding the request
to be timely.
[Headnote 3]
Farmers next contends that the district court abused its discretion in awarding the fees.
Specifically, Farmers argues that the court failed to set forth sufficient reasons in support of
its award. We disagree. The court found that Pickering was a prevailing party and had not
recovered more than $20,000 within the meaning of NRS 18.010. The court also found that
under the circumstances, [there is] no reason why [Pickering] should not be awarded
attorney's fees. Given the discretionary nature of the award, these findings and conclusions
are sufficient reasons to grant the award and do not reveal a clear abuse of discretion. Further,
contrary to Farmers' contention, the court's recognition, in its written findings, that the award
of fees under NRS 18.010 is discretionary reveals that the district court exercised its
discretion. Based on our review of the record, we conclude that the district court did not
abuse its discretion in awarding fees under the circumstances of this case. See Lyon v. Walker
Boudwin Construction Co., 88 Nev. 646, 503 P.2d 1219 (1972). Consequently, we decline to
disturb the award.
104 Nev. 660, 663 (1988) Farmers Ins. Exchange v. Pikering
Farmers' remaining contentions have been considered and are without merit. Accordingly,
we affirm the decision of the district court.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 663, 663 (1988) Cerminara v. District Court
CRAIG CERMINARA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE EARLE W. WHITE, JR., DISTRICT JUDGE, Respondent, CALIFORNIA
HOTEL AND CASINO dba SAM'S TOWN HOTEL GAMBLING HALL AND BOWLING
CENTER, Real Party in Interest.
No. 19381
December 9, 1988 765 P.2d 182
Original petition for writ of prohibition. Eighth Judicial District Court, Clark County;
Earle W. White, Jr., Judge.
Plaintiff brought petition for extraordinary relief challenging order of the district court
staying enforcement of judgment pending its decision on motion to entertain previously filed
motion for new trial. The Supreme Court held that district court lacked jurisdiction to
entertain defendant's motion for new trial because defendant abandoned his motion.
Writ granted.
Hilbrecht & Associates and Frederick S. Geihs, Las Vegas, for Petitioner.
Rawlings, Olson & Cannon and John E. Gormley, Las Vegas, for Respondent and Real
Party in Interest.
New Trial.
District court lacked jurisdiction to entertain defendant's motion for new trial because defendant
abandoned his motion by taking no action to compel ruling on motion when district court granted motion
for judgment notwithstanding verdict and by taking action to compel ruling only after Supreme Court had
reversed and reinstated jury verdict. NRCP 50(c)(1).
OPINION
Per Curiam:
1

This petition for extraordinary relief challenges an order of the district court staying
enforcement of a judgment below pending its decision on a motion to entertain a
previously filed motion for a new trial.
____________________

1
On November 10, 1988, this court resolved this petition is an unpub-
104 Nev. 663, 664 (1988) Cerminara v. District Court
district court staying enforcement of a judgment below pending its decision on a motion to
entertain a previously filed motion for a new trial.
In 1983, petitioner (Cerminara) visited Sam's Town Hotel and Casino and, while there,
was severely beaten by security officers. Cerminara sued Sam's Town, and a jury ultimately
awarded Cerminara a total of $5,000 in compensatory damages and $100,000 in punitive
damages. After the verdict was returned, Sam's Town filed a Motion for Judgment
Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial and/or
Remittitur. The district court granted the motion for JNOV, and Cerminara appealed that
decision to this court. On August 25, 1988, this court reversed the order granting the motion
for judgment notwithstanding the verdict, and reinstated the jury's verdict. See Cerminara v.
California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988).
On September 13, 1988, after this court issued its remittitur, Sam's Town filed in the
district court an Ex Parte Motion for Stay of Enforcement of Judgment Pursuant to NRCP
62. In that motion, Sam's Town noted that although the district court had previously granted
its motion for a JNOV, it had never ruled on the motions for a new trial or for remittitur that
were filed contemporaneously with the motion for JNOV. Therefore, Sam's Town requested
that the district court stay enforcement of the judgment below so that the court could resolve
the motions for new trial and for remittitur that Sam's Town alleged were still pending below.
On September 14, 1988, the district court entered an order granting Sam's Town's motion for
a stay. This proceeding followed.
On October 6, 1988, during the pendency of this proceeding, Cerminara filed in the district
court a notice that Sam's Town had satisfied the judgment against it. Thus, it appears that any
issues relating to the propriety of the stay order are now moot, and the only issue left for this
court's review is whether the district court has jurisdiction to entertain the new trial motion.
NRCP 50(b) allows a motion for a new trial to be joined with a motion for JNOV. Further,
NRCP 50(c)(1) governs the procedure to be followed by the district courts when ruling on
motions for JNOV that are joined with a motion for a new trial. NRCP 50(c)(1) provides in
pertinent part:
If the motion for judgment notwithstanding the verdict, provided for in subdivision
(b) of this rule, is granted, the court shall also rule on the motion for a new trial, if
any, by determining whether it should be granted if the judgment is thereafter
vacated or reversed, and shall specify the grounds for granting or denying the
motion for the new trial.
____________________
lished order. Pursuant to a request, we have determined that our decision should be issued in a published
opinion. Accordingly, we hereby issue this opinion in place of our order granting the petition for writ of
prohibition filed November 10, 1988.
104 Nev. 663, 665 (1988) Cerminara v. District Court
court shall also rule on the motion for a new trial, if any, by determining whether it
should be granted if the judgment is thereafter vacated or reversed, and shall specify the
grounds for granting or denying the motion for the new trial.
Cerminara notes in the present case that despite the directions contained in NRCP
50(c)(1), supra, the district court did not rule on Sam's Town's motion for a new trial when it
granted the JNOV motion. He further points out that Sam's Town never objected to the fact
that the district court did not rule on its motion for a new trial, and failed to take any action to
compel a ruling on that motion until after this court's decision on appeal. Thus, Cerminara
argues that Sam's Town abandoned its motion for new trial and that, therefore, the district
court lacks jurisdiction to entertain the motion for a new trial at this time. We agree.
Initially, we note that in Oberman v. Dun & Bradstreet, Inc., 507 F.2d 349 (7th Cir. 1974),
the court was faced with facts identical to those in the present case and concluded that the
motion for a new trial was abandoned because the moving party took no action to compel a
ruling on that motion after the trial court granted a motion for JNOV. Further, we note that in
our prior opinion, we reversed the order granting Sam's Town's motion for JNOV, and
reinstated the jury's verdict. When the remittitur issued for this court, it terminated the case
below as to all issues settled by the judgment. See Cowgill v. Dodd, 87 Nev. 401, 488 P.2d
353 (1971). Upon receipt of this court's remittitur, it was the duty of the district court to
comply with the mandate of this court without variation. See Vinton Eppsco Incorporated of
Albuquerque v. Showe Homes, Inc., 638 P.2d 1070, 1071 (N.M. 1981). Thus, the only task
left to the district court after receiving this court's remittitur was to reinstate the jury's verdict.
If this court's mandate was erroneous in any respect, it was incumbent upon the parties to
apprise this court of the perceived error in a petition for rehearing. See NRAP 40.
Under the circumstances of this case, we conclude that the district court lacks jurisdiction
to entertain Sam's Town's motion for a new trial. Therefore, we grant this petition and we
direct the clerk of this court to issue a writ of prohibition, forthwith, enjoining the district
court from entertaining the motion for a new trial.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this matter.
____________
104 Nev. 666, 666 (1988) Semenza v. Nevada Med. Liability Ins. Co.
LAWRENCE J. SEMENZA, Appellant, v. NEVADA MEDICAL LIABILITY INSURANCE
COMPANY, Respondent.
No. 17903
December 9, 1988 765 P.2d 184
Appeal from judgment of legal malpractice. Second Judicial District Court, Washoe
County; Jerry C. Whitehead, Judge.
Medical malpractice insurer brought legal malpractice action against physician's defense
attorney, and attorney sought to recover fees for defending physician. The district court
entered contingent judgment in favor of insurer. Appeal was taken. The Supreme Court held
that insurer's action against attorney was premature.
Reversed and remanded.
[Rehearing denied February 22, 1989]
Beckley, Singleton, DeLanoy, Jemison & List, Reno, and Alverson & Taylor, Las Vegas,
for Appellant.
Eugene J. Wait, Jr. and Don Springmeyer, Reno, for Respondent.
1. Attorney and Client.
Medical malpractice insurer's legal malpractice action against physician's defense attorney did not accrue
and was premature, where medical malpractice judgment against physician was reversed on appeal.
2. Attorney and Client.
Legal malpractice is premised upon attorney-client relationship, duty owed to client by attorney, breach
of duty, and breach as proximate cause of client's damages.
3. Limitation of Actions.
Legal malpractice action does not accrue until plaintiff knows or should know facts relevant to attorney's
duty, breach of duty, and damages.
4. Attorney and Client.
Where damage has not been sustained or where it is too early to know whether damage has been
sustained, legal malpractice action is premature and should be dismissed.
5. Attorney and Client.
Legal malpractice action does not accrue until plaintiff's damages are certain and are not contingent upon
outcome of appeal.
6. Attorney and Client.
Attorney retained by medical malpractice insurer was entitled to recover from insurer attorney fees for
defending physician.
104 Nev. 666, 667 (1988) Semenza v. Nevada Med. Liability Ins. Co.
OPINION
Per Curiam:
Georgette McNally sued Alan J. Mishler, M.D., claiming medical malpractice. At the time,
Mishler's professional negligence insurer was the Nevada Medical Liability Insurance
Company (NMLIC). NMLIC retained attorney Lawrence J. Semenza to represent Dr.
Mishler in the malpractice action.
At trial, over several Semenza objections, McNally introduced a damaging hospital
memorandum into evidence. The memorandum, which came to be known as the dog letter,
contained an emotional statement of opinion as to Dr. Mishler's capabilities and character.
The dog letter undoubtedly contributed to the verdict against Dr. Mishler. The jury awarded
McNally $1,149,262.48 in damages and Mishler appealed.
Subsequent to the filing of the Mishler appeal but prior to a decision by this court, NMLIC
filed the instant action against Semenza claiming legal malpractice. Consolidated with
NMLIC's action was Semenza's $9,496.50 claim against NMLIC for legal fees earned in
defending Dr. Mishler. At trial, NMLIC maintained that Semenza negligently conducted
discovery and negligently prepared for trial. With respect to Semenza's claim for legal fees,
uncontroverted evidence was presented showing the amount of time expended, activities
undertaken in Dr. Mishler's behalf, and Semenza's hourly rate.
On October 30, 1986, the jury returned a verdict for NMLIC and awarded $64,940.19 for
past economic losses arising from the underlying medical malpractice action. A contingent
judgment was also entered for all future losses. Nothing was awarded on Semenza's claim.
On December 23, 1986, the underlying medical malpractice judgment was reversed.
Mishler v. McNally, 102 Nev. 625, 730 P.2d 432 (1986). In Mishler we stated, inter alia, that
the admission of the dog letter, discussed above, constituted prejudicial error of a
magnitude that demands reversal and a new trial. Id. at 629, 730 P.2d 432.
DISCUSSION
[Headnote 1]
Semenza contends on appeal that, given this court's holding in Mishler, the trial court erred
in finding him guilty of legal malpractice and in failing to award him attorney's fees earned in
defending Dr. Mishler. We agree with Semenza's contentions.
[Headnotes 2-4]
In Nevada, legal malpractice is premised upon an attorney-client relationship, a duty owed
to the client by the attorney, breach of that duty, and the breach as proximate cause of the
client's damages.
104 Nev. 666, 668 (1988) Semenza v. Nevada Med. Liability Ins. Co.
breach of that duty, and the breach as proximate cause of the client's damages. See
Warmbrodt v. Blanchard, 100 Nev. 703, 706-707, 692 P.2d 1282, 1285 (1984). Such an
action does not accrue until the plaintiff knows, or should know, all facts relevant to the
foregoing elements and damage has been sustained. See Jewett v. Patt, 95 Nev. 246, 247, 591
P.2d 1151, 1152 (1979). More specifically, where damage has not been sustained or where it
is too early to know whether damage has been sustained, a legal malpractice action is
premature and should be dismissed. Id., 591 P.2d at 1152. See also Boulder City v. Miles, 85
Nev. 46, 49, 449 P.2d 1003, 1005 (1969) ([N]o one has a claim against another without
having incurred damages).
[Headnote 5]
From the above, it follows that a legal malpractice action does not accrue until the
plaintiff's damages are certain and not contingent upon the outcome of an appeal. Amfac
Distribution Corp. v. Miller, 673 P.2d 795, 796 (Ariz.App. 1983). Specifically, [w]here
there has been no final adjudication of the client's case in which the malpractice allegedly
occurred, the element of injury or damage remains speculative and remote, thereby making
premature the cause of action for professional negligence. Id. Moreover, [a]pparent damage
may vanish with successful prosecution of an appeal and ultimate vindication of an attorney's
conduct by an appellate court. Id. See also, Woodruff v. Tomlin, 511 F.2d 1019, 1021 (6th
Cir. 1975); Bowman v. Abramson, 545 F.Supp. 227, 228-229 (E.D.Pa. 1982). Therefore, it is
only after the underlying case has been affirmed on appeal that it is appropriate to assert
injury and maintain a legal malpractice cause of action for damages.
Moreover, we do not agree with NMLIC's contention that the appeal of the judgment
against Mishler was a necessary result of legal malpractice that caused NMLIC to sustain
damage by way of attorney's fees and costs in prosecuting the appeal. If Mishler had realized
a defense verdict in his trial, the plaintiff may have appealed, thereby causing NMLIC to
incur attorney's fees on appeal. More importantly, however, this court will not countenance
interlocutory-type actions for legal malpractice brought to trial while an appeal of the
underlying case is still pending. If an appeal is taken in the underlying case, it is simply
premature to proceed to trial on a legal malpractice claim until the appeal of the original
judgment on the underlying cause of action has been finally resolved.
Having concluded that the instant action against Semenza was premature, we must also
conclude that the trial court erred in rejecting the motion by Semenza's counsel to hold the
trial in abeyance pending the outcome of the Mishler appeal. We note, however, that the
trial judge had ample reason to disapprove of the extreme tardiness of the motion, filed
as it was, on the eve of trial.
104 Nev. 666, 669 (1988) Semenza v. Nevada Med. Liability Ins. Co.
however, that the trial judge had ample reason to disapprove of the extreme tardiness of the
motion, filed as it was, on the eve of trial. The motion accordingly had to be heard after
summoning a venire and witnesses, and after counsel and the conscientious trial judge
prepared over the weekend for trial.
1
It was nevertheless error to deny the motion and allow
the trial to proceed to verdict and judgment on the legal malpractice issue. The motion should
have been granted or the case dismissed without prejudice.
[Headnote 6]
With respect to Semenza's claim for attorney's fees, we must again conclude that the
district court erred. Specifically, both parties had the opportunity to present evidence
concerning the value of Semenza's legal services, yet, only Semenza elected to do so. Because
Semenza's evidence is uncontroverted and the verdict entered below against Semenza on the
premature legal malpractice claim cannot stand, Semenza is entitled to judgment against
NMLIC in the amount of $9,496.50 for his legal fees. Avery v. Gilliam, 97 Nev. 181, 625
P.2d 1066 (1981).
In conclusion, given the foregoing, we reverse the jury verdict and judgment entered
thereupon, and remand with instructions to award Semenza attorney's fees consistent with the
evidence presented at trial.
2

____________________

1
Although it was error to proceed to trial on the claim against Semenza, we leave it to the sound discretion of
the trial judge as to whether, and on what legal basis, costs and fees resulting from the tardy motion may be
imposed on Semenza or his counsel.

2
The Honorable E.M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 669, 669 (1988) State v. Braidy
THE STATE OF NEVADA, Appellant, v. TIMOTHY
JAMES BRAIDY, JR., Respondent.
No. 19308
December 9, 1988 765 P.2d 187
Motion to dismiss discretionary appeal from order suppressing evidence. Sixth Judicial
District Court, Humboldt County; Llewellyn A. Young, Judge.
The district court granted defendant's motion to suppress evidence, and State appealed, and
defendant moved to dismiss appeal. The Supreme Court held that: (1) limitation period for
State to file notice of appeal begins when district court first renders its ruling on motion, and
in case where oral ruling is rendered by district court, period begins on date ruling is orally
pronounced, and {2) State's notices of appeal were timely filed from date district court
orally granted motion to suppress evidence.
104 Nev. 669, 670 (1988) State v. Braidy
rendered by district court, period begins on date ruling is orally pronounced, and (2) State's
notices of appeal were timely filed from date district court orally granted motion to suppress
evidence.
Motion denied.
Brian McKay, Attorney General, Carson City; Jack T. Bullock, District Attorney, Edward
T. Reed, Deputy District Attorney, Humboldt County, for Appellant.
Laura W. FitzSimmons, Carson City, for Respondent.
1. Criminal Law.
For purpose of statute providing that notice of appeal from order suppressing evidence must be filed with
clerk of district court within two judicial days, and with clerk of Supreme Court within five judicial days,
after the ruling by district court, limitation period begins when district court first renders its ruling on
motion and, in case where oral ruling is rendered by district court, period begins on date ruling is orally
pronounced. NRS 177.015, subd. 2.
2. Criminal Law.
State timely filed notice of appeal from district court's order suppressing evidence, pursuant to statute
stating that notice of appeal must be filed with clerk of district court within two judicial days, and with
clerk of Supreme Court within five judicial days, after ruling by district court, where State filed notice of
appeal before court entered written suppression order, but during applicable time period after court made
oral suppression order. NRS 177.015, subd. 2.
OPINION
Per Curiam:
1

This is a discretionary appeal pursuant to NRS 177.015(2), from an order of the district
court suppressing evidence. This court previously issued an order allowing the parties to brief
this appeal and scheduling the case for oral argument in February, 1989. Respondent has
moved to dismiss on the ground that appellant's notices of appeal were filed prematurely. The
motion is opposed.
On August 23, 1988, the district court orally granted respondent's motion to suppress
evidence of marijuana seeds which were recovered from an airplane as the result of a
warrantless search which the district court concluded had been made in violation of
respondent's fourth amendment rights. The district court expressly directed respondent to
prepare any necessary papers to effectuate this decision."
____________________

1
The Honorable Cliff Young, Justice, voluntarily disqualified himself from participating in this case.
104 Nev. 669, 671 (1988) State v. Braidy
to effectuate this decision. Also on August 23, 1988, the state filed a notice of appeal in the
district court. On August 26, 1988, the state filed a separate notice of appeal in this court as
required by NRS 177.015(2). The district court entered its written order granting respondent's
motion to suppress on September 7, 1988. Alleging that the state's notices of appeal were
prematurely filed, respondent has moved to dismiss this appeal for lack of jurisdiction.
[Headnotes 1, 2]
This court has previously noted that NRS 177.015(2) provides for an appeal where
previously no appeal was allowed. Therefore, this court stated that the legislature was free to
place restrictions on the exercise of the right to such an appeal, and held that the statute
states clearly the manner in which an appeal must be filed. See State v. Loyle, 101 Nev. 65,
66, 692 P.2d 516, 517 (1985) (emphasis in original). NRS 177.015(2) (emphasis added)
provides in relevant part: Notice of the appeal [from an order suppressing evidence] must be
filed with the clerk of the district court within 2 judicial days and with the clerk of the
supreme court within 5 judicial days after the ruling by the district court. This court has not
previously determined whether the ruling by the district court refers to the oral
pronouncement or the written entry of the order.
The intent of the legislature in passing the very short time limitations in NRS 177.015(2)
was to expedite the appeal so that trial would not be delayed. Construing ruling to include
an oral pronouncement from the bench serves the legislative intent of avoiding unnecessary
delay. We conclude, therefore, that the legislature intended the limitation period to begin
when the district court first renders its ruling on the motion and, in a case where an oral ruling
is rendered by the district court, the period begins on the date the ruling is orally pronounced.
Appellant's notices of appeal were timely filed from the date the district court orally granted
the motion to suppress evidence in this case. Accordingly, we deny respondent's motion to
dismiss.
____________
104 Nev. 672, 672 (1988) Sarkes Tarzian, Inc. v. Legis. State of Nev.
SARKES TARZIAN, INC., an Indiana Corporation, dba KTVNChannel 2, Appellant, v.
THE LEGISLATURE OF THE STATE OF NEVADA and THE STATE OF NEVADA,
Respondents.
No. 19242
December 16, 1988 765 P.2d 1142
Appeal from an order of the district court denying appellant's motion for summary
judgment and granting respondents' cross-motion for summary judgment. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Television station sought declaration that state assembly resolution providing for private
committee meeting was unconstitutional. The district court granted summary judgment for
state, and appeal was taken. The Supreme Court held that state legislature could authorize
closed committee meeting, to review evidence which parties subpoenaed to appear before
committee desired to keep confidential, absent clear constitutional mandate prohibiting the
legislature from conducting committee meetings in private.
Affirmed.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, Reno, for Appellant.
Brian McKay, Attorney General, William E. Isaeff, Chief Deputy Attorney General, Lorne
J. Malkiewich, Legislative Counsel, James W. Penrose, Principal Deputy Legislative Counsel,
Carson City, for Respondents.
1. Declaratory Judgment.
Suit challenging state legislative committee's authority to hold closed meetings under certain
circumstances was not moot, though legislature had adjourned before issue was brought to hearing and
houses of next legislature might or might not have an occasion to involve themselves in similar matters;
mootness doctrine would yield in public interest to more pressing expedient of statutory interpretation.
2. States.
State legislature could authorize closed committee meeting, to review evidence which parties subpoenaed
to appear before committee desired to keep confidential, absent clear constitutional mandate prohibiting the
legislature from conducting committee meetings in private; constitutional provision requiring that doors of
each House shall be kept open during its session, did not explicitly prohibit private committee meetings.
Const. art. 4, 15.
104 Nev. 672, 673 (1988) Sarkes Tarzian, Inc. v. Legis. State of Nev.
OPINION
Per Curiam:
Appellant Tarzian, an Indiana corporation, sued the State of Nevada and its legislature
seeking a declaration that Assembly Resolution 13
1
is contrary to and in violation of Art.
4, Sec. 15 of the [Nevada] Constitution, and is therefore null and void.
2
The district court
denied Tarzian's request for declaratory relief, and this appeal followed. For the reasons stated
below, we affirm the order of the trial court.
At the outset, we question the validity of this suit against the state and the legislature. Just
what the State of Nevada, a governmental unit of the United States, presumably able to act
only through the agency of its executive branch, has to do with the enactment or annulment of
Assembly Resolution 13 is not readily apparent to us. The Legislature does not seem to be
any more amenable to being sued in this manner than does the State. Whether the Nevada
Legislature is in law a suable entity so as to give substance to an action seeking annulment of
the legislative enactments of one of its Houses is a matter of grave concern; but since no
contention is made by the state or the legislature relative to its capacity to be sued, and since
the trial court proceeded to deny Tarzian's suit without considering this point, we will
proceedwithout ruling on the capacity of the state or the legislature to be sued in this
wayto review the trial court's order denying declaratory relief.
The circumstances surrounding the enactment of Assembly Resolution 13 are stated in the
trial court's order:
During the last legislative session, the Nevada Legislature was conducting hearings
on Assembly bill 420[,] [w]hich was an attempt to regulate the franchising of petroleum
sales outlets. The Speaker of the Assembly issued a subpoena for the production of
documents to the Atlantic Richfield Company, requiring the Company to produce
those documents for the Assembly Commerce Committee's examination.
____________________

1
Assembly Resolution No. 13 provides in part:
RESOLVED BY THE ASSEMBLY OF THE STATE OF NEVADA, That Assembly Standing Rule
11 be suspended as it regards meetings of the Assembly Standing committee on Commerce and any
subcommittees thereof to review the documents and information produced by ARCO in response to the
subpoena issued by the Speaker of the Assembly on May 8, 1987. . . .
1987 Nev. Stats., File No. 88, 2404.
Assembly Standing Rule 11 states: All meetings of the Assembly and its standing committees shall be open
to the public. 1975 Nev. Stats., File No. 78, 1907.

2
Article 4, section 15 of the Nevada Constitution provides as follows: The doors of each House shall be
kept open during its session, except the Senate while sitting in executive session, and neither shall, without the
consent of the other, adjourn for more than three days nor to any other place than that in which they may be
holding their sessions.
104 Nev. 672, 674 (1988) Sarkes Tarzian, Inc. v. Legis. State of Nev.
the production of documents to the Atlantic Richfield Company, requiring the
Company to produce those documents for the Assembly Commerce Committee's
examination.
Atlantic Richfield refused to honor the subpoena, apparently envisioning all of their
competitors avidly examining their confidential papers in a public meeting.
Negotiations ensued, then the Assembly and Atlantic Richfield reached an agreement
concerning the production of the documents.
Assembly Resolution No. 13 memorialized that agreement. It provided that the
documents would be produced, but they would only be reviewed in closed committee
meetings, and nothing obtained from those documents nor the documents themselves
could be disclosed to the public. The Resolution also suspended Standing Rule 11,
which provided for public meetings of all Assembly Committees. Assembly Resolution
13 was adopted by the Assembly. A closed meeting was scheduled for review of the
Committee.
Around the date of that closed meeting, Plaintiff brought this action. It sought a Writ
of Mandamus from this Court preventing the meeting, as well as an order of the Court
declaring that such meeting excluding the public was unconstitutional.
[Headnote 1]
In addition to the foregoing narration of fact we would note, as did the trial court, that the
legislature had adjourned before this issue was brought to hearing and that the houses of the
next legislature may or may not have the occasion to involve themselves in matters such as
this. Notwithstanding the apparent mootness, the trial court, citing Bd. of County Comm'rs v.
White, 102 Nev. 587, 589, 729 P.2d 1347, 1349 (1986), further noted that the mootness
doctrine must yield in the public interest to the more pressing expedient of statutory
interpretation. The trial court properly concluded that the question as to whether a legislative
committee may hold closed meetings under certain circumstances is just such an issue.
[Headnote 2]
The trial court ultimately refused to annul the action of the Nevada Assembly in enacting
Resolution 13, ruling that the court
must give great reference to the Legislature's authority. There is not an express
prohibition against closed committee meetings. The Legislature has decided that such
meetings are appropriate under its Constitutional authority. It is not, and should not be,
the function of a Court to interfere with the Legislature absent a clear constitutional
mandate allowing such action.
104 Nev. 672, 675 (1988) Sarkes Tarzian, Inc. v. Legis. State of Nev.
We agree with the trial court that there is no clear constitutional mandate that requires
judicial nullification of Assembly Resolution 13. Absent such constitutional mandate, we
decline to interfere with the Assembly's action.
The gist of the district court's ruling is that unless there are specific limitations upon the
legislature contained in the Constitutions of the United States or the State of Nevada, the
authority of the legislature to act is practically absolute. Galloway v. Truesdell, 83 Nev. 13,
422 P.2d 237 (1967); In re Platz, 60 Nev. 296, 108 P.2d 858 (1940). We agree.
Tarzian concedes that nothing in the Federal Constitution prohibits either house of the
Nevada Legislature from conducting committee meetings in private. Similarly, the Nevada
Constitution states only that the doors of each House shall be kept open during its session.
Nev. Const., art. 4, sec. 15. The resolution in question does not prevent the doors of either
house from being kept open during its session.
The trial court correctly observed that the above constitutional provision does not mention
the committees of either house and concluded that had the Framers intended to prohibit
closed sessions of committees, they would have said so. Additionally, as the trial court
pointed out, the constitutional debates also fail to indicate any constitutional intent to open all
committee meetings as were the doors of each House . . . during its session, that is, during a
meeting of the entire body of the house.
The general practice adopted by our legislature has been that committee meetings are to be
open to the public. For example, see Assembly Standing Rule 11 (All meetings of the
Assembly and its standing committees shall be open to the public.), 1975 Nev. Stats., File
No. 78, 1907, and Senate Standing Rule 13, which provides for the holding of open meetings
by Senate committees except on two-thirds vote of the committee that it is in the public
interest to close the meeting for the hearing of specified testimony, 1975 Nev. Stats., File
No. 41, 1880. Nevertheless, if the legislature in governing its affairs chooses to pass a
resolution such as Resolution 13, now before us, under our constitution it may do so, there
being no clear constitutional prohibition against it.
3
We therefore affirm the order of the trial
court.
4

____________________

3
Although not discussed in the body of this opinion, Tarzian also asserts that Senate Standing Rule 13 is
violative of article 4, section 15 of the Nevada Constitution insofar as it authorizes the closure of Senate
committee meetings upon a two-thirds vote of the committee. For the same reasons that we reject Tarzian's
constitutional challenge to Assembly Resolution 13, we also reject Tarzian's companion challenge to Senate
Standing Rule 13.

4
The Honorable E.M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 676, 676 (1988) Turnbow v. Pacific Mut. Life Ins.
HARRIETTE TURNBOW, Appellant, v. PACIFIC MUTUAL LIFE INSURANCE
COMPANY, a California Corporation; PENSION ADMINISTRATION, INC., a California
Corporation; JOHN F. McGOWAN, Individually, DONALD R. LAWRENZ, Individually
and as Trustee for Beneficial Employees Security Trust; BENEFICIAL EMPLOYEES
SECURITY TRUST, Respondents.
No. 18516
December 21, 1988 765 P.2d 1160
Appeal from an order granting respondents summary judgment. First Judicial District
Court, Carson City; Michael R. Griffin, Judge.
Sole proprietor brought breach of contract action against health insurer. The district court
granted summary judgment for insurer, and appeal was taken. The Supreme Court held that
employer did not create ERISA plan merely by purchasing health insurance for herself and
employees through multi-employer trust, for purpose of determining whether ERISA
preempted employer's breach of contract action against insurer.
Reversed.
Riley Beckett and Carl F. Martillaro, Carson City, for Appellant.
Hawkins & Sharp and Keegan G. Low, Reno, for Respondents.
1. Pensions.
Employer did not create ERISA plan merely by purchasing health insurance for herself and her
employees through multi-employer trust, absent evidence that employer was committed to or had
guaranteed continuation of such benefits, for purpose of determining whether ERISA preempted employer's
breach of contract action against insurer.
2. Insurance.
Even if sole proprietor's purchase of health insurance for herself and her employees created ERISA plan,
proprietor was not employee of her unincorporated business, and thus she was not preempted from seeking
relief against insurer in state court.
OPINION
Per Curiam:
On November 1, 1974, appellant, Harriette Turnbow, dba The Bottle Stop, subscribed to
respondent Beneficial Employees Security Trust (BEST). Appellant is the sole owner of The
Bottle Stop, a liquor store in Yerington. BEST is a multi-employer trust {MET),
underwritten by respondent Pacific Mutual Insurance Company.
104 Nev. 676, 677 (1988) Turnbow v. Pacific Mut. Life Ins.
trust (MET), underwritten by respondent Pacific Mutual Insurance Company. A MET is a
trust created to pool small employers together to permit them to obtain lower insurance rates.
By subscribing to BEST appellant was able to obtain major medical insurance benefits up
to $1,000,000. Appellant paid the premiums through The Bottle Stop. The policy provided
coverage for appellant and three full-time employees of The Bottle Stop.
In August, 1981, appellant suffered a stroke. Appellant received benefits under the policy.
However, by May of 1983 the monthly premium had risen to $1,256.00. Appellant could no
longer afford the premium payments and lost her benefits under the policy.
On July 15, 1985, appellant filed suit in the First Judicial District Court. Appellant sought
insurance proceeds and damages under several different theories including: breach of
contract, bad faith, breach of the insurance companies' obligations under NRS 686A.010 et
seq., infliction of emotional distress and punitive damages. Respondents removed the suit to
federal district court. Subsequently, the case was remanded back to the First Judicial District
Court.
Respondents moved to dismiss the action. Respondents asserted that appellant had created
an ERISA plan and that appellant's causes of action were therefore preempted by federal law.
1
Appellant opposed the motion contending that she had not created an ERISA plan. The
district court treated the motion to dismiss as a motion for summary judgment. The district
court granted respondents' motion finding that appellant had created an ERISA plan and that
federal law preempted her causes of action under state law. This appeal followed.
Appellant contends that the district court erred in granting respondents summary
judgment. Specifically, appellant contends that the district court erred in determining that she
had created an ERISA plan.
There are two leading cases on the issue of whether an employer can create an ERISA plan
merely by purchasing health insurance benefits for employees. One is Donovan v.
Dillingham, 688 F.2d 1367 (11th Cir. 1982) and the other is Taggart Corp. v. Life and Health
Benefits Administration, Inc., 617 F.2d 1208 (5th Cir. 1980). Both cases indicate that more is
involved in creating an ERISA plan than the mere purchase of health insurance benefits for
employees by an employer.
The court in Dillingham held that employers who subscribed to METS pursuant to
collective bargaining agreements or pursuant to a continuing practice of purchasing insurance
for a class of employees had established employee welfare plans.
____________________

1
Employees Retirement Income Security Act of 1974, U.S.C. 1001 et seq.
104 Nev. 676, 678 (1988) Turnbow v. Pacific Mut. Life Ins.
employees had established employee welfare plans. Dillingham, 688 F.2d at 1374. The
Dillingham court also held that those employers subscribing to a MET, although not pursuant
to collective bargaining agreements or a practice of providing insurance benefits, also
established employee welfare plans if circumstances showed an anticipated continued
furnishing of the benefits. Dillingham, 688 F.2d at 1374, 1375. Thus, Dillingham requires, in
addition to the employer purchasing health insurance benefits for employees, that
circumstances indicate the employer is committed to the continuation of health insurance
benefits for employees.
The Taggart court held that an employer did not establish an ERISA plan by subscribing
to a MET. Taggart, 617 F.2d at 1211. The Taggart court stated: [W]e cannot believe that
[ERISA] regulates bare purchases of health insurance where, as here, the purchasing
employer neither directly nor indirectly owns, controls, administers or assumes responsibility
for the policy or its benefits. Taggart, 617 F.2d at 1211. The Taggart court reasoned that
ERISA had been created to protect the assets of employee benefit plans and that because there
were no assets and the employer was not liable for benefits no plan existed. Taggart, 617
F.2d at 1211. Thus, Taggart also requires, in addition to the employer purchasing health
insurance benefits for employees, that some indication exists showing the employer intended
to guarantee the continuation of health insurance benefits for employees.
[Headnote 1]
We conclude that the district court erred in finding that appellant had created an ERISA
plan. Appellant did not create an ERISA plan. Unless there is some indication that an
employer is committed to or has guaranteed the continuation of such benefits, nothing is
created for ERISA to protect and no plan exists. Appellant did not purchase the health
insurance for her employees pursuant to a collective bargaining agreement or a practice of
providing such benefits. Nor is there any indication that appellant intended to guarantee the
continued furnishing of the benefits. ERISA does not regulate the bare purchases of health
insurance where, as here, there is no indication that the employer intended to guarantee the
continued furnishing of the benefits.
Appellant also contends that the district court erred in determining that her state common
law claims were preempted by ERISA. The United States Supreme Court has held that when
an ERISA plan exists state common law remedies are preempted by the remedies provided
under ERISA. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549 (1987). As
we stated above, appellant did not create an ERISA plan. Therefore, her state common law
remedies were not preempted and the district court erred in determining that they were.
104 Nev. 676, 679 (1988) Turnbow v. Pacific Mut. Life Ins.
state common law remedies were not preempted and the district court erred in determining
that they were.
Furthermore, appellant does not qualify as a participant or beneficiary in an ERISA plan
within the meaning of ERISA and therefore may seek relief under our state common law.
In order for an individual to bring an action to recover benefits owed under an ERISA
plan, the individual must be a participant or beneficiary of the plan. See 29 U.S.C.
1132(a)(1)(B). Conversely, if [appellant] is not a participant or beneficiary, [she]
may sue under and seek the broader relief provided by state tort law, and the case must
be remanded to state court to permit [her] to do so.
Dodd v. John Hancock Mut. Life Ins. Co., 688 F.Supp. 564, 568 (E.D.Cal. 1988). Appellant
was a participant or beneficiary in an ERISA plan only if she was an employee. Dodd, 688
F.Supp. at 569.
[Headnote 2]
Dodd held that an owner of a corporation who is also an employee of the corporation
shall be treated as an employee for purposes of determining whether the owner is a participant
in such a plan within the meaning of ERISA. Dodd, 688 F.Supp. at 571. The Dodd court
reasoned that when self-employed individuals incorporate the corporation becomes the
employer and the most natural reading of the statute includes all corporate employees as
employees under an ERISA plan. In this case, appellant was self-employed. Her business, The
Bottle Stop, was not incorporated and therefore could not be considered appellant's employer.
Thus, even if appellant could be viewed as having created an ERISA plan, she was not an
employee and is entitled to seek relief in state court. Accordingly, we reverse and remand this
case to the district court so that appellant may proceed to trial on all her causes of action.
2

____________________

2
The Honorable E.M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 680, 680 (1988) Rembert v. State
RANZY CLEO REMBERT, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17752
December 21, 1988 766 P.2d 890
Appeal from a judgment of conviction of battery with intent to commit a crime and sexual
assault. Eighth Judicial District Court, Clark County; Miriam Shearing, Judge.
Defendant was convicted in the district court of battery with intent to commit crime and
sexual assault, and he appealed. The Supreme Court held that: (1) evidence presented by
defendant did not render victim's uncorroborated testimony incredible as matter of law, and
(2) State could not impeach defendant's credibility with evidence that he had been discharged
from employment.
Reversed and remanded for new trial.
Frank J. Cremen, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Chief Deputy, Melvyn T. Harmon, Chief Deputy, Clark County, for Respondent.
1. Rape.
Uncorroborated testimony of sexual assault victim is sufficient to sustain conviction for that charge.
2. Assault and Battery.
Asserted failure of anyone to detect alleged continuous sexual abuse, victim's mother's testimony on
cross-examination that she seldom left children with defendant, and mother's alleged ulterior motive of
obtaining exclusive possession of home she shared with defendant did not render sexual assault victim's
uncorroborated testimony incredible as matter of law.
3. Witnesses.
Evidence that defendant had been discharged from employment as limousine driver was not admissible to
impeach defendant's testimony of his continuous employment history, which defendant presented to show
that he lacked opportunity to commit alleged acts of sexual assault, rather than to show that he was
industrious. NRS 48.045, subd. 1(a), 50.085, subd. 3.
4. Criminal Law.
District court's error in permitting State to impeach defendant by demonstrating that he had been
discharged from his employment as limousine driver, in sexual assault prosecution, was not harmless
beyond reasonable doubt, as jury's verdict in case depended on its assessment of witnesses' credibility.
NRS 48.045, subd. 1(a), 50.085, subd. 3.
OPINION
Per Curiam:
A jury convicted appellant Ranzy Cleo Rembert of one count each of battery with intent
to commit a crime and sexual assault.
104 Nev. 680, 681 (1988) Rembert v. State
each of battery with intent to commit a crime and sexual assault. He now appeals from the
district court's judgment of conviction and alleges three assignments of error. According to
appellant, the evidence adduced at trial was insufficient to support his conviction, the district
court erred in refusing to declare a mistrial, and the district court erred in permitting the
prosecution to present improper impeachment evidence. For the reason set forth below, we
reverse and remand for a new trial.
THE FACTS
On May 14, 1985, the State, by information, charged appellant with five counts of sexual
assault and two counts of battery with intent to commit a crime. Although the victim alleged
numerous instances of sexual assault by appellant continuing from the time that she was in
the first grade, the information charged only those acts, allegedly committed between
November 29, 1981 and July 5, 1982, that she could recall with particularity. The two counts
of which the jury found appellant guilty were said to have occurred on July 5, 1982, when the
victim was fourteen years of age.
The victim testified that on July 5, 1982, she and her half-sister, appellant's daughter
Alisha, were watching television when appellant appeared in the nude and directed her to
gather up some soiled towels located in an upstairs bathroom. She testified further that she
refused to follow appellant's direction and that he left momentarily, but returned carrying an
electrical extension cord. A struggle ensued during which appellant allegedly struck the
victim repeatedly with the extension cord and then forced her into an upstairs bedroom where
he sexually assaulted her.
Appellant denied ever striking the victim and any sexual misconduct. The defense's theory
was that Barbara Cooper, the victim's mother, instigated the prosecution as a means of
obtaining exclusive ownership of the home in which she and appellant had cohabited.
SUFFICIENCY OF THE EVIDENCE
[Headnotes 1, 2]
Appellant correctly concedes that the uncorroborated testimony of a sexual assault victim
is sufficient to sustain a conviction for that charge. See Deeds v. State, 97 Nev. 216, 626 P.2d
271 (1981). He contends, however, that abundant circumstances exist that render the victim's
testimony unbelievable. In support of his position, appellant cites State v. Diamond, 50 Nev.
433, 264 P.2d 697 (1982), where we suggested that circumstances could exist in a sexual
assault case that would be sufficient, as a matter of law, to render the complaining witness's
testimony incredible. Id. at 437, 264 p.2d at 69S-99.
104 Nev. 680, 682 (1988) Rembert v. State
incredible. Id. at 437, 264 p.2d at 698-99. Appellant argues that the failure of anyone to detect
the alleged continuous sexual abuse, coupled with Barbara Cooper's testimony on
cross-examination that she seldom left the children with appellant, as well as Barbara
Cooper's ulterior motive of obtaining exclusive possession of the parties' home are sufficient
to destroy the credibility of the victim's testimony. We disagree.
The foregoing were matters for the jury's deliberation in assessing the weight of the
evidence and the credibility of the witnesses. Washington v. State, 96 Nev. 305, 608 P.2d
1101 (1980). We are not convinced that it was unreasonable for the jury to accept the victim's
testimony as true and to reject appellant's theory of defense. See Hunt v. State, 92 Nev. 536,
554 P.2d 255 (1976). We conclude, therefore, that the victim's testimony was not incredible
as a matter of law.
DENIAL OF MISTRIAL MOTION
Appellant next contends that the district court erred in denying his motion for a mistrial.
Appellant based the motion on his inability to meaningfully cross-examine the victim's
half-sister, Alisha, and what he perceived as the prejudicial impact of Alisha's demeanor
before the jury.
We need not reach this issue because, as hereinafter set forth, we must reverse for a new
trial because of the introduction of improper impeachment evidence. At a new trial, problems
relating to the cross-examination of Alisha will not necessarily recur. We trust the State will
refrain from placing her on the witness stand in the future, if it appears she will again refuse
to testify and to be cross-examined on material matters.
IMPROPER IMPEACHMENT EVIDENCE
Finally, appellant contends that the district court erred in permitting the prosecution to
impeach his credibility on a collateral matter with extrinsic evidence. Appellant argues that
the district court's decision to admit the extrinsic evidence was contrary to NRS 50.085(3),
1
and that the resulting prejudice was sufficient to deny him a fair trial. We agree.
____________________

1
NRS 50.085(3) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his
credibility, other than conviction of crime, may not be proved by extrinsic evidence. They may, however,
if relevant to truthfulness, be inquired into on cross-examination of the witness himself or on
cross-examination of a witness who testifies to an opinion of his character for truthfulness or
untruthfulness, subject to the general limitations upon relevant evidence and the limitations upon
interrogation and subject to the provisions of NRS 50.090.
104 Nev. 680, 683 (1988) Rembert v. State
[Headnote 3]
In an effort to show that he lacked the opportunity to commit the alleged acts, appellant
presented evidence of his continuous employment history. Appellant testified that during one
period he worked as a limousine driver. On cross-examination, the prosecution asked why
appellant discontinued that employment. Appellant replied that he had not enjoyed the work
and decided to return to the gaming industry. Over the defense's objection, the prosecution
later presented testimony that the limousine company had terminated appellant.
Respondent argues that appellant improperly presented evidence of appellant's character
traits and that pursuant to NRS 48.045(1)(a)
2
the State was entitled to rebut this evidence.
Certainly, if appellant had presented evidence of his employment history to demonstrate that
he was industrious such evidence would have been improper and inadmissible. See Daly v.
State, 99 Nev. 564, 665 P.2d 798 (1983) (accused may offer character evidence confined to
traits of character relevant to conduct charged). Industriousness is not relevant to the conduct
with which appellant was charged. Even so, pursuant to NRS 48.045(1)(a) the State would be
permitted only to rebut the proffered character evidence with similar evidence, i.e.,
evidence of appellant's lack of industry.
Appellant did not, however, present evidence of his past employment to show that he was
industrious; rather, as noted above, he offered the evidence to demonstrate lack of
opportunity. The prosecution could have rebutted this testimony by showing that despite
appellant's employment he did have the opportunity to commit the alleged acts. Instead, it
sought to impeach appellant's credibility with extrinsic evidence on a matter entirely
collateral to the issues being decided at trial. In permitting the prosecution to proceed in this
manner, the district court erred.
[Headnote 4]
As the jury's verdict in this case was dependent on its assessment of the witnesses'
credibility, we cannot say that the district court's error was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). Accordingly, we reverse the
district court's judgment of conviction and remand this case for a new trial.
____________________

2
NRS 48.045(1)(a) provides:
Evidence of a person's character or a trait of his character is not admissible for the purpose of proving
that he acted in conformity therewith on a particular occasion, except:
Evidence of his character or a trait of his character offered by an accused, and similar evidence
offered by the prosecution to rebut such evidence.
104 Nev. 680, 684 (1988) Rembert v. State
reverse the district court's judgment of conviction and remand this case for a new trial.
____________
104 Nev. 684, 684 (1988) Nevada Power v. Metropolitan Dev. Co.
NEVADA POWER COMPANY, Appellant, v. METROPOLITAN DEVELOPMENT
COMPANY, aka METROPOLITAN DEVELOPMENT CORPORATION, Respondent.
No. 17774
December 21, 1988 765 P.2d 1162
Appeal from an order of the district court granting a motion to dismiss pursuant to NRCP
12(b)(5). Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Appeal was taken from order of the district court dismissing third-party complaint for
failure to comply with limitations period of statute governing actions for damages for injury
or wrongful death caused by deficiency in construction of improvements to real property. The
Supreme Court held that statute could not be given retroactive effect to bar cause of action
which accrued prior to effective date of statute.
Reversed.
[Rehearing denied March 8, 1989]
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Joseph and Daniel Foley Associates, Las Vegas, for Respondent.
1. Limitation of Actions.
Statute imposing eight year statute of limitations on actions for damages for injury or wrongful death
caused by deficiency in construction of improvements to real property could not be given retroactive effect
to bar action which accrued prior to effective date of statute. NRS 11.205.
2. Statutes.
In absence of clear legislative intent to make statute retroactive, it will be interpreted to have only
prospective effect.
3. Statutes.
When statute is held to be unconstitutional, it is null and void ab initio; it is of no effect, affords no
protection, and confers no rights.
104 Nev. 684, 685 (1988) Nevada Power v. Metropolitan Dev. Co.
OPINION
Per Curiam:
Appellant Nevada Power Company filed a third-party complaint against respondent,
Metropolitan Development Company (Metropolitan), which was dismissed when the district
court concluded that the limitations period of NRS 11.2051 barred the action. The district
court erred in its conclusion; therefore, we reverse the dismissal.
[Headnote 1]
Serine Cordaro was injured in a fall on March 24, 1982. She filed suit against Nevada
Power Company, alleging that her fall was caused by a misalignment between an electrical
pull-box and the surrounding sidewalk. The suit was filed within the two-year period
allowed for personal injury actions. NRS 11.190(4)(e). Nevada Power subsequently filed its
third-party complaint against the installer of the pull-box, Metropolitan. Metropolitan moved
to dismiss the complaint
2
on the grounds that Nevada Power's complaint had not been filed
within eight years of the substantial completion of the installation, as required by NRS
11.205{2).
____________________

1
11.205 Actions for damages for injury or wrongful death caused by deficiency in construction of
improvements to real property: Patent deficiencies.
1. Except as otherwise provided in NRS 11.202 and 11.203, no action may be commenced against the owner,
occupier or any person performing or furnishing the design, planning, supervision or observation of
construction, or the construction of an improvement to real property more than 6 years after the substantial
completion of such an improvement, for the recovery of damages for:
(a) Any patent deficiency in the design, planning, supervision or observation of construction or the
construction of such an improvement;
(b) Injury to real or personal property caused by any such deficiency; or
(c) Injury to or the wrongful death of a person caused by any such deficiency.
2. Notwithstanding the provisions of NRS 11.190 and subsection 1 of this section, where injury occurs in the
sixth year after the substantial completion of such an improvement, an action for damages for injury to property
or person, damages for wrongful death resulting from such injury or damages for breach of contract may be
commenced within 2 years after the date of such injury, irrespective of the date of death, but in no event may an
action be commenced more than 8 years after the substantial completion of the improvement.
3. For the purposes of this section, patent deficiency means a deficiency which is apparent by reasonable
inspection.

2
Appellant complains that the district court considered matters outside the pleadings, thereby making the
motion into one for summary judgment. NRCP 12(b). This claim has some merit. In particular, we note that the
district court relied on the statute applicable to a patent, rather than a latent, negligent, or fraudulent deficiency.
See NRS 11.202-.205. Our resolution of the case, however, is not affected by this issue; therefore, we do not
choose to address it.
104 Nev. 684, 686 (1988) Nevada Power v. Metropolitan Dev. Co.
of the substantial completion of the installation, as required by NRS 11.205(2). The district
court agreed that the suit had not been timely filed, and granted the dismissal.
[Headnote 2]
In our opinion, the district court erred in applying the statute retroactively. NRS 11.205
was enacted on May 24, 1983. 1983 Statutes of Nevada 1273. The underlying cause of action
occurred on March 24, 1982. In the absence of clear legislative intent to make a statute
retroactive, it will be interpreted to have only a prospective effect. Rice v. Wadkins, 92 Nev.
631, 555 P.2d 1232 (1976); Miller v. Ashurst, 86 Nev. 241, 468 P.2d 357 (1970). The
legislative history of NRS 11.205 does not support the conclusion that the statute was meant
to be applied retroactively. The district court thus erred in relying on it as the sole basis for
the dismissal of the complaint.
[Headnote 3]
The former version of NRS 11.205 was declared unconstitutional in State Farm v. All
Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983). When a statute is held to be
unconstitutional, it is null and void ab initio; it is of no effect, affords no protection, and
confers no rights. State v. Coleman, 605 P.2d 1000 (Mont.), cert. denied, 446 U.S. 970
(1979); Batesel v. Schultz, 91 Nev. 553, 540 P.2d 100 (1975). Consequently, the appropriate
statute of limitations to be applied in this case is NRS 11.190(4)(e), which allows a plaintiff
to file a suit for damages within two years of the date of injury. See Lavery v. Wolden, 104
Nev. Adv. Op. 56, August 25, 1988. Cordaro met the requirements of the applicable statute.
Appellant's third-party complaint should proceed as directed by NRCP 14(a).
3

We hereby reverse the order of the district court and remand this matter for further
proceedings consistent with the views expressed in this opinion.
____________________

3
It is possible that appellant could also pursue an action for contribution. See NRS 17.225 et seq. We do not
reach that issue today.
____________
104 Nev. 687, 687 (1988) Life Ins. Co. of North America v. Wollett
LIFE INSURANCE COMPANY OF NORTH AMERICA and VETERANS LIFE
INSURANCE COMPANY, ELIZABETH WOLLETT, an Individual, Appellants, v.
JENNIFER MATHILDA WOLLETT, a Minor Child; and DAVID MICHAEL WOLLETT, a
Minor Child, Respondents.
No. 18704
December 21, 1988 766 P.2d 893
Certified questions pursuant to NRAP 5. The United States District Court, District of
Nevada; Bruce R. Thompson, District Judge.
Life insurer brought federal suit seeking declaratory judgment to determine who was payee
of life policy in light of listed beneficiary's nolo contendere plea to involuntary manslaughter
of insured. Other life insurer and potential beneficiaries joined action. The United States
District Court for the District of Nevada, Bruce R. Thompson, J., certified issues to the
Supreme Court of Nevada. The Supreme Court held that: (1) beneficiaries of life insurance
policy who pled nolo contendere to involuntary manslaughter of insurer could collect benefits
under policy, and (2) statute barring beneficiaries convicted of murder from recovering life
policy benefits was exclusive basis under Nevada law for denying entitlement to insurance
proceeds.
Questions answered.
Edwards, Hunt, Hale & Hansen and Travis C. Williamson, Las Vegas, for Appellant
Veterans Life Insurance Co.
Hawkins & Sharp and Keegan G. Low, Reno, for Appellant Life Insurance Company of
North America.
Mooney & Boetsch, Reno, for Appellant Elizabeth Wollett.
Diehl, Evans & Associates, Fallon, for Respondents.
1. Insurance.
Beneficiary of life policy who plead nolo contendere to involuntary manslaughter for death of insured
could collect benefits under the policies. NRS 134.007, 200.010, 688A.420.
2. Insurance.
Statute barring beneficiary convicted of murder from recovering life policy benefits was exclusive basis
for denying beneficiary entitlement to proceeds and barred only beneficiaries actually convicted of murder.
NRS 134.007, 200.010, 688A.420.
104 Nev. 687, 688 (1988) Life Ins. Co. of North America v. Wollett
OPINION
1

Per Curiam:
This proceeding is before this court pursuant to the certification procedure set forth in
NRAP 5. This case presents two issues certified to us by the United States District Court,
District of Nevada, the Honorable Bruce R. Thompson, presiding.
2
The United States
District Court phrased the two issues as follows:
1. Whether a person who has willfully, unlawfully and intentionally taken the life of an
insured person may, under the laws of the State of Nevada, receive the proceeds of insurance
on the life of decedent.
2. Whether the provisions of NRS 688A.420 constitute the exclusive basis under Nevada
law for denying entitlement to insurance proceeds, thus limiting such preclusion solely to a
policy beneficiary actually convicted of murder of the insured.
On November 5, 1985, appellant Elizabeth Wollett (Wollett) shot and killed her husband,
Richard Wollett. She was originally charged with murder, in violation of NRS 200.010, on
December 2, 1985. As a result of a plea bargain agreement between the Nye County District
Attorney and Wollett, an amended information was filed on March 12, 1986, charging
Wollett with involuntary manslaughter in violation of NRS 200.070. The language of the
amended information states that Wollett killed her husband without intending to do so. . . .
Wollett subsequently entered a plead of nolo contendere to the charge contained in the
amended information.
3

Appellants Life Insurance Company of North America and Veterans Life Insurance
Company had previously issued policies of insurance on the life of Richard Wollett, and the
benefits under these policies$150,000.00 and $70,000.00 respectivelywere paid over by
appellants to Wollett, the primary beneficiary named in each policy.
____________________

1
The Honorable E.M. Gunderson, Chief Justice, did not participate in the decision of this matter. Pursuant to
NRAP 5, the clerk of this court shall transmit a certified copy of this opinion under seal of the Supreme Court of
Nevada to the federal district court and to the parties.

2
NRAP 5 provides, in relevant part:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United
States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District
Court, when requested by the certifying court, if there are involved in any proceeding before those courts
questions of law of this state which may be determinative of the cause then pending in the certifying court
and as to which it appears to the certifying court there is no controlling precedent in the decisions of the
supreme court of this state.

3
The district court sentenced Wollett to six years imprisonment, which it suspended, and five years
probation.
104 Nev. 687, 689 (1988) Life Ins. Co. of North America v. Wollett
paid over by appellants to Wollett, the primary beneficiary named in each policy.
On July 30, 1986, Standard Insurance Company, which had also issued a policy on the life
of Richard Wollett which named Wollett as a primary beneficiary, filed an interpleader action
in federal district court, naming as defendants Wollett and her minor children, Jennifer and
David Wollett. This action alleged uncertainty on the part of Standard Insurance Company as
to the proper distribution of benefits under its insurance policy given the circumstances
surrounding the death of Richard Wollett.
On April 1, 1987, a court-appointed guardian ad litem for the Wollett children answered
the interpleader complaint, alleging, among other things, that the killing of Richard Wollett
was willful, intentional and unlawful. The prayer of that answer requested the court to declare
that the Wollett children are entitled to receive all of the proceeds of the policy issued by
Standard Insurance Company.
On April 6, 1987, a third-party complaint was filed on behalf of the Wollett children
against appellant Life Insurance Company of North America and Veterans Life Insurance
Company, seeking direct recovery of the policy benefits under the policies issued by
appellants based upon alleged bad faith in the payment of these benefits to Wollett.
At the same time, the Wollett children filed a cross-complaint against Wollett, requesting
the court to impress a constructive trust upon the proceeds of all life insurance policies
received by Wollett and all other real and personal property to which she had succeeded upon
the death of Richard Wollett, as surviving spouse or joint tenant of Richard Wollett.
Appellants Elizabeth Wollett, Life Insurance Company of North America, and Veterans
Life Insurance Company filed several dispositive motions with respect to the third-party
complaint and cross-complaint. These motions were heard and denied by the federal district
court on September 4, 1987. The court's action in denying these motions was based upon the
paucity of Nevada law bearing on the issues presented. The court made no definitive ruling
on these issues, which it found determinative of the action, and accordingly, certified the
instant questions to this court.
[Headnote 1]
Appellants contend that NRS 688A.420 constitutes the exclusive basis under Nevada law
for denying entitlement to insurance proceeds.
4
Specifically, appellants contend that because
the legislature chose only to deny insurance proceeds to persons convicted of murder, it
did not intend to bar a person convicted of manslaughter.
____________________

4
NRS 688A.420 states:
No person convicted of the murder of a decedent is entitled to any part of the proceeds of a policy of
insurance on the life of the decedent.
104 Nev. 687, 690 (1988) Life Ins. Co. of North America v. Wollett
lature chose only to deny insurance proceeds to persons convicted of murder, it did not intend
to bar a person convicted of manslaughter. Appellants rely upon our recent decision in
Holliday v. McMullen, 104 Nev. 294, 756 P.2d 1179 (1988), in which we construed NRS
134.007.
5

Respondents, on the other hand, contend NRS 688A.420 should be construed to conform
to the common law rule which bars payment of proceeds to a beneficiary of a life insurance
policy who feloniously kills the insured, whether convicted of murder or not. This contention
is without merit.
[Headnote 2]
In Holiday, we held that the language of NRS 134.007 must be given its plain meaning, so
that only a criminal conviction of murder will preclude an individual from succeeding to an
estate. 104 Nev. at 294, 759 P.2d 1179. The operative language of NRS 134.007 and NRS
688A.420 is almost identical. The statutes were enacted by the legislature at the same time.
Neither the legislative history nor common sense indicate that NRS 688A.420 should be
construed differently from NRS 134.007.
6
Hence, we hold that NRS 688A.420 bars only a
beneficiary actually convicted of murder as defined in NRS 200.010 from receiving insurance
proceeds under a policy on the life of the insured.
7
A person convicted of involuntary
manslaughter pursuant to NRS 200.0708 is thus not barred from receiving insurance
proceeds. Therefore, we cannot agree with respondents' contention that where a criminal trial
has not resulted in a murder conviction, a claimant may prevent the perpetrator from
receiving insurance proceeds by showing in a subsequent civil action that the killing was
willful, intentional and unlawful.
____________________
If there is no beneficiary named in the policy to whom the proceeds are to be paid if the convicted person
cannot or may not receive them, the proceeds must be placed in the estate of the decedent.

5
NRS 134.007 states:
No person convicted of the murder of the decedent is entitled to succeed to any portion of the
decedent's estate. The portion to which he would otherwise be entitled to succeed goes to the other
persons entitled to it under the provisions of this chapter.

6
See Nev. Stat. ch. 419, 4, 7 at 779-80.

7
NRS 200.010 states:
Murder is the unlawful killing of a human being, with malice aforethought, either express or implied,
or caused by controlled substance which was sold to a person in violation of chapter 453 of NRS. The
unlawful killing may be effected by any of the various means by which death may be occasioned.

8
NRS 200.070 provides:
1. Involuntary manslaughter is the killing of a human being, without any intent to do so, in the
commission of an unlawful act, or a
104 Nev. 687, 691 (1988) Life Ins. Co. of North America v. Wollett
Respondents contend that NRS 688A.420 does not preempt the common law. Respondents
claim that the legislative intent was to expand rather than narrow the common law, so that the
common law principle that a malfeasor cannot profit from his wrong survives NRS
688A.420. Respondents are in error. At common law, pursuant to the principle that one could
not benefit from his crime, a beneficiary who feloniously killed the insured could not recover
under the policy. Rose v. Rose, 79 N.M. 435, 444 P.2d 762 (1968). Our legislature, by clear
and unambiguous language, has prohibited only those convicted of murder from profiting
from their misdeeds. By enacting NRS 688A.420, the legislature has chosen to preempt the
common law, and in so doing has made the statute the exclusive basis under Nevada law for
denying entitlement. Cf. Holliday v. McMullen, 104 Nev. at 294, 756 P.2d at 1179 (by
enacting NRS 134.007, the legislature has preempted the common law).
____________________
lawful act which probably might produce such a consequence in an unlawful manner; 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, or is committed in the prosecution of a felonious intent, the
offense is murder.
2. If a person dies otherwise than of natural causes as a result of a violation of NRS 484.348, and no
person intentionally caused his death, the driver is guilty of involuntary manslaughter.
____________
104 Nev. 691, 691 (1988) Larson v. State
GLENDA K. LARSON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18755
December 21, 1988 766 P.2d 261
Appeal from conviction of first-degree murder with use of a deadly weapon and order
denying motion for new trial. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Defendant was convicted of first-degree murder with use of deadly weapon and sentenced
to two consecutive life sentences with possibility of parole before the district court and
defendant appealed, claiming ineffective assistance of counsel. The Supreme Court held that
defense counsel provided ineffective assistance during plea negotiations in causing client to
withdraw voluntary manslaughter plea.
Reversed.
William H. Smith, Las Vegas, for Appellant.
1
Brian McKay, Attorney General, Carson
City; Rex Bell, District Attorney, and James Tufteland, and John E.

____________________

1
Appellant's counsel did not represent her during the proceedings below.
104 Nev. 691, 692 (1988) Larson v. State
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, and James
Tufteland, and John E. Ham, Deputies, Clark County, for Respondent.
Criminal Law.
Defense counsel's recommendations to client to reject State's offer of plea bargain, and refusing to turn
over defendant's psychological test results to State for consideration of mitigating circumstances prior to
defendant's withdrawal of guilty plea, in order to further personal ambitions by attempting to establish
battered wife self-defense theory in State, demonstrated that defendant received ineffective assistance of
counsel; defendant was convicted of first-degree murder and sentenced to two consecutive life sentences,
after withdrawing plea to voluntary manslaughter. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
2

Appellant Glenda Kay Larson was convicted of first-degree murder with use of a deadly
weapon and sentenced to two consecutive life sentences with the possibility of parole. The
sole question on this appeal is whether Glenda received effective assistance of counsel during
the pretrial plea negotiation phase of these proceedings. We conclude that she did not.
3

On August 22, 1986, Glenda shot and killed her husband Jonathan Larson. During the four
years of their marriage preceding Jonathan's death, the victim had been an alcoholic and had
continuously subjected his wife to physical and mental abuse.
After her arrest, appellant underwent psychiatric testing which revealed that at the time of
the killing she was suffering from post-traumatic stress disorder and battered wife
syndrome. Dr. Thomas Carroll, the psychologist who performed the evaluations, concluded
that these disorders impaired Glenda's ability to reason and rendered her unable to control her
actions when she shot her husband.
Glenda's appointed counsel planned to use Dr. Carroll's conclusions to establish at trial
that Glenda's act, in her own mind, was an act of self-defense even though her husband was
sleeping when she shot him. The record in this case reveals that the defense attorney also
believed his successful presentation of this "self-defense" theory at Glenda's trial would
bring him increased clientele and national acclaim.4
____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.

3
Appellant properly presented this issue for appeal by raising it in a motion for a new trial. The district court
conducted an evidentiary hearing on that issue, but denied the motion.
104 Nev. 691, 693 (1988) Larson v. State
self-defense theory at Glenda's trial would bring him increased clientele and national
acclaim.
4

Without commenting on the availability of a battered wife defense in Nevada,
5
we
conclude that counsel's desire for business and notoriety skewed his perception of Glenda's
chances at trial and greatly diminished his ability to effectively provide his client with
essential pre-trial counsel and advice.
6

The State, on two occasions, offered Glenda an opportunity to plead guilty to
second-degree murder. Her counsel encouraged her to reject the offer on the premise that the
state would not have offered [her] such a plea bargain if it did not feel that its case was
weak. Glenda followed that advice.
The State then offered Glenda the option of pleading guilty to voluntary manslaughter with
the use of a deadly weapon. When she learned that this was a probational offense, Glenda
accepted the State's offer, despite her attorney's strong objections, and entered a guilty plea on
February 9, 1987.
By the time of Glenda's plea, her attorney had acquired an unprecedented belief that he had
some sort of proprietary or attorney work product interest in Glenda's psychological test
results. As a result, he instructed Dr. Carroll to relabel all of Glenda's files as attorney work
product and to keep them from the State. He then failed or refused to send the information to
the Department of Parole and Probation for its consideration as mitigating circumstances in
the presentence report.
7
Before the sentencing hearing, the attorney did provide the judge
with the test results, but refused to provide a copy to the State.
____________________

4
The attorney told Dr. Carroll, If we won this case, we'd be flying across the country consulting as a
consulting team in special cases like this and I'd have all the work I could handle. I'd have to hire people to help
me I'd be so busy.

5
The Kansas Supreme Court recently determined that a self-defense instruction is improper in a case in which
a battered woman kills her sleeping spouse. State v. Stewart, 763 P.2d 572 (Kan. 1988). However, at least two
other jurisdictions have held that an abused spouse who kills her sleeping husband is entitled to a jury instruction
on the battered spouse self-defense theory. See State v. Norman, 366 S.E.2d 586 (N.C.Ct.App.), appeal pending,
370 S.E.2d 233 (N.C. 1988); State v. Leidholm, 334 N.W.2d 811 (N.D. 1983).

6
We note, as a preliminary matter, that in addition to his or her rights at trial, a criminal defendant has a Sixth
Amendment right to the effective assistance of counsel when deciding whether to accept or reject a plea bargain.
See McMann v. Richardson, 397 U.S. 759 (1970) (Constitution guarantees effective counsel when accepting
guilty plea); Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988) (Constitution guarantees effective
counsel when rejecting a plea offer).

7
Without the mitigating circumstances evidence, the Department of Parole and Probation recommended a
seven-year sentence for the voluntary manslaughter charge with a consecutive seven-year sentence for the use of
a deadly weapon charge.
104 Nev. 691, 694 (1988) Larson v. State
test results, but refused to provide a copy to the State. The attorney advised Glenda that if the
court required him to turn over the information, she was to withdraw her guilty plea and
proceed to trial. When Glenda questioned his reasons, he told her to shut up and . . . trust
him because he knew what he was doing because he was a lawyer and [Glenda] wasn't
When the court did order Glenda's attorney to provide the State with the psychiatric
information, he asked that his client be allowed to withdraw her plea and go to trial. The court
gave Glenda that option; she acted according to her attorney's wishes.
Following the withdrawal of the plea, the State again offered Glenda the option of
pleading guilty to voluntary manslaughter with the use of a deadly weapon. But her attorney
assured her that her chances of an acquittal were very good and that at most a jury would
convict her only of the same crime the State offered in its plea bargain.
Glenda finally rejected the offer and proceeded to trial. As we noted earlier, the trial
resulted in a first-degree murder conviction and two consecutive life sentences with the
possibility of parole.
8

This is not a situation in which an attorney made a reasoned plea recommendation which
hindsight reveals to be unwise. Neither is this a case of an attorney relying on an ultimately
unsuccessful defense tactic. Seldom could such scenarios support a finding of ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. at 689; McMann v.
Richardson, 397 U.S. 759, 770 (1970).
This is a case in which it is apparent that defense counsel based his recommendation and
tactical decisions upon factors that would further his personal ambitions as opposed to his
client's best interest. It is this conduct which fell below an objective standard of
reasonableness and resulted in prejudice to his client. Strickland v. Washington, 466 U.S.
at 687 (1984). See also Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). It was this
conduct which denied Glenda her constitutionally guaranteed right to effective assistance of
counsel.
Because Glenda was not effectively represented, we reverse her conviction for first-degree
murder with use of a deadly weapon and remand for a new trial.
9

____________________

8
Appellant also asserts that her attorney's efforts in presenting her defense at trial fell below the level of
reasonable attorney competence. Because this issue was not raised in any post-trial proceeding and because we
decide the case on the pretrial assistance issue, it is unnecessary for us to discuss the merits of this claim,
although we are constrained to note that the record reveals strong evidence of incompetence by defense counsel
during trial.

9
Based upon candid representations by counsel for the State during oral argument, we anticipate that Glenda
will be afforded another opportunity to accept a plea of voluntary manslaughter with use of a deadly weapon.
____________
104 Nev. 695, 695 (1988) Berner v. State
EDWARD DORAN BERNER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17511
December 21, 1988 765 P.2d 1144
Appeal from conviction of four counts of sexual assault of a minor and two counts of
lewdness with a minor. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Defendant was convicted in the district court of sexual assault of a minor and lewdness
with a minor, and he appealed. The Supreme Court held that: (1) testimony by a rebuttal
witness about an incident in which the defendant made a remark to her, four years earlier,
which she interpreted as a sexual invitation was not admissible without an attempt to question
the defendant about the incident or any chance for the defendant to defend himself against the
testimony, and (2) even if the testimony had been relevant, its prejudicial effect outweighed
probative value.
Reversed.
Morgan D. Harris, Public Defender; Susan Deems Roske, Deputy Public Defender, R.
Roger Hillman, Deputy Public Defender, Clark County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy District Attorney, George Assad, Deputy District Attorney, Clark County,
for Respondent.
1. Criminal Law.
Testimony of rebuttal witness that, four years earlier when she was fifteen years old, defendant allegedly
made remarks to her that she interpreted as sexual invitation was not admissible in prosecution for sexual
assault of minor; testimony involved evidence of uncharged misconduct, prosecution had never attempted
to question defendant about the incident, witness was produced on rebuttal, giving defendant no chance to
defend himself against her testimony, and trial court refused to allow defendant to call surrebuttal witness.
NRS 50.085, subd. 3.
2. Criminal Law.
Testimony by rebuttal witness that, four years earlier when witness was fifteen years old, defendant made
remark to witness that she interpreted as sexual invitation was not admissible in prosecution for sexual
assault of minor, absent showing that prior remark was relevant to later assault on eight-year-old child,
absent proof of prior incident by clear and convincing evidence, and absent proof that evidence would be
more probative than prejudicial; remark was ambiguous, only evidence that uncharged incident occurred
was testimony given four years after incident, and there was no finding that probative value of testimony
outweighed highly prejudicial nature of testimony which implied that defendant
possessed abnormal sexual desires and on which prosecutor relied in closing
argument.
104 Nev. 695, 696 (1988) Berner v. State
weighed highly prejudicial nature of testimony which implied that defendant possessed abnormal sexual
desires and on which prosecutor relied in closing argument. NRS 48.035, subd. 1, 48.045, subd. 1.
OPINION
Per Curiam:
On August 20, 1985, eight-year-old Melissa told her step-mother that she had been
sexually molested. She named Edward Doran Berner, the appellant, as her molester. Berner
was subsequently arrested and tried before a jury. He was convicted of four counts of sexual
assault of a minor and two counts of lewdness with a minor, and was sentenced to four
consecutive life terms. For the reasons expressed in this opinion, the judgment is reversed and
the case remanded for a new trial.
In our view, the court committed reversible error when it allowed a rebuttal witness for the
prosecution to testify regarding a specific instance of appellant's conduct over objection. In
light of our disposition of this issue, we need not consider appellant's other assignments of
error.
Appellant's defense consisted of his denial of any wrongdoing, and the testimony of
thirteen character witnesses. In rebuttal, the state introduced the testimony of one Pauline
Czabot. Czabot described an incident which she claimed had occurred four years previously,
when she was fifteen years old, in which the appellant allegedly made a remark to her that she
interpreted as a sexual invitation. Czabot testified that she had once been alone with Berner in
his apartment, and that he had said, The are going to be gone for a while. If you'd like to, you
know. . . . Then, as she interpreted the movement of his body, she claimed Berner jerked
towards the bedroom.
[Headnote 1]
In general, specific instances of conduct may not be proved by extrinsic evidence. NRS
50.085(3).
1
The use of uncharged bad acts to convict a defendant is heavily disfavored in our
system of criminal justice. Such evidence is likely to be prejudicial or irrelevant, and forces
the accused to defend himself against vague and unsubstantiated charges.
____________________

1
NRS 50.085(3):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other
than conviction of crime, may not be proved by extrinsic evidence. The may, however, if relevant to truthfulness,
be inquired into on cross-examination of the witness himself . . . subject to the general limitations upon relevant
evidence and the limitations upon interrogation. . . .
104 Nev. 695, 697 (1988) Berner v. State
and unsubstantiated charges. Shults v. State, 96 Nev. 742, 748, 616 P.2d 388, 392 (1980);
McCormick on Evidence, 42 (1984). Evidence of uncharged misconduct may unduly
influence the jury, and result in a conviction of the accused because the jury believes he is a
bad person. People v. Guerrero, 548 P.2d 366 (Cal. 1976). The use of specific conduct to
show a propensity to commit the crime charged is clearly prohibited by Nevada law, NRS
44.045(1); Mayes v. State, 95 Nev. 140, 591 P.2d 250 (1979), and is commonly regarded as
sufficient grounds for reversal. See Lataille v. Ponte, 754 F.2d 33 (1st Cir. 1985); United
States v. Herrera-Medina, 609 F.2d 376 (9th Cir. 1979).
The prosecution had never attempted to question appellant about the incident involving
Czabot. Instead, Czabot was produced as a rebuttal witness, giving the appellant no chance
whatever to defend himself against her testimony. Indeed, the court refused to allow appellant
to put on a surrebuttal witness, who might have been able to shed some light on the meaning
of his remark.
[Headnote 2]
In some fairly recent cases, we have allowed greater latitude in evidence presented to show
aberrant sexual propensities. We have been careful, however, to require that such evidence
must be probative of something beyond mere bad character, such as intent, motive or plan.
Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978); McMichael v. State, 94 Nev. 184, 577
P.2d 398 (1978) (overruled on other grounds). Subject to this requirement, evidence of
alleged misconduct may be acceptable if three conditions are met: (1) the incident is relevant
to the crime charged; (2) the incident is proven by clear and convincing evidence; and (3) the
evidence is more probative than prejudicial. See United States v. DeLuna, 763 F.2d 897 (8th
Cir.), cert. denied, 474 U.S. 980 (1985). Czabot's testimony fails to meet any of these
requirements. First, we question whether the ambiguous remark in question, allegedly made
to the fifteen-year-old witness, is significantly relevant to an alleged sexual attack on an
eight-year-old child three years later. The testimony does not with any power tend logically
and by inference to establish a fact material to the state. McMichael, supra, 94 Nev. at 188,
577 P.2d at 401. When the connection between two acts is not clearly perceived, evidence of
the uncharged act should be excluded. Id. at 190, 577 P.2d at 401; People v. Kelley, 424 P.2d
947 (1967). Czabot's testimony could not be introduced to prove a common design or plan,
since the offense was remote in time, involved someone quite different from the victim of
the charged crime, and involved distinctly different conduct. Kelley, supra, 424 P.2d at 954.
104 Nev. 695, 698 (1988) Berner v. State
Second, the only evidence that the uncharged incident occurred was the testimony of
Czabot, four years after it allegedly occurred. We cannot dismiss prospects that the remark
was misinterpreted, or that hindsight greatly distorted the significance and meaning of
appellant's remark. The prosecution should not be allowed to make its case on the basis of
unreliable testimony about a remote event. Unsubstantiated charges of misconduct hinder the
defense and present a grave danger to the fairness of the trial.
Third, we note the court made no finding that the probative value of the evidence
outweighed its prejudicial effect. All evidence is subject to such a finding. NRS 48.035(1).
Even relevant, convincing evidence may be excluded if it is highly prejudicial. Williams v.
State, 95 Nev. 830, 603 P.2d 694 (1979). Czabot's testimony was highly prejudicial because it
implied that the appellant possessed abnormal sexual desires. This created an atmosphere in
which the appellant could be convicted because he appeared to be immoral and not because
the state had proved its case beyond a reasonable doubt. This effect was exacerbated by the
lack of a curative instruction, either at the time of Czabot's testimony or with the final jury
instructions. Further, we note that the state heavily relied on Czabot's testimony in closing
argument, thereby increasing the possibility of prejudice.
2

Under these circumstances, we cannot conclude that the introduction of Czabot's testimony
was harmless error. Accordingly, we reverse the judgment and remand for a new trial.
____________________

2
The prosecutor made the following statement:
When Pauline took the stand and told you exactly what happened, that in no uncertain terms that the
defendant made an overt sexual proposition towards her, unrebuttable by any testimony, it stands on its
own and it shows you what kind of a man the defendant can be with a girl. Imagine a 19-year-old on the
stand and how she looks, four foot, eleven, very petite little girl. Image the little girl's body she must have
had when she was 15, and the defendant. Sure he never touched any of these adults [the character
witnesses] that testified. They can fight back. Melissa couldn't. He thought maybe Pauline wouldn't. He
was wrong. He showed himself to be exactly what he is. No pillar of our society, no part of our society.
He deserves to be not a part of our society. He deserves to be put away. He deserves nothing from us.
____________
104 Nev. 699, 699 (1988) Santillanes v. State
ISMAEL G. SANTILLANES, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17747
December 21, 1988 765 P.2d 1147
Appeal from a judgment of conviction of first degree murder with the use of a deadly
weapon. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
On remand, 714 P.2d 184, defendant was convicted in the district court of murder, and he
appealed. The Supreme Court, Gunderson, C. J., held that: (1) prosecutor did not improperly
comment upon defendant's right to remain silent, and (2) results of serological electrophoresis
tests were admissible.
Affirmed.
Brian H. Breedlove, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Deputy, Clark County, for Respondent.
1. Criminal Law.
Evidence that murder defendant had twice voluntarily consented to meet with authorities, but then had
cancelled meetings just prior to fleeing country did not constitute impermissible comment on defendant's
right to remain silent, but rather evidenced flight, showing consciousness of guilt, and thus was admissible.
U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Evidence that murder defendant had absented himself from his military post, though it constituted
evidence of uncharged crime, was admissible as evidence of defendant's flight, which was probative of his
consciousness of guilt. NRS 48.035, subd. 1.
3. Criminal Law.
Prosecutor's misconduct in expressing his personal belief in murder defendant's guilt did not warrant
reversal; jury was informed that prosecutor's beliefs were not in evidence and should not be relied upon.
4. Criminal Law.
Results of serological electrophoresis test on blood sample found on murder defendant's clothing were
admissible where sufficient evidence was presented concerning test's trustworthiness and reliability.
OPINION
By the Court, Gunderson, C. J.:
This case has previously come before this court on appeal. The facts are reported in
Santillanes v. State, 102 Nev. 48, 714 P.2d 184 (1986). In Santillanes, we concluded that the
admission of Santillanes' failure to take [a] polygraph test and the prosecutor's comments
thereon constituted prejudicial error." Id. at 51, 714 P.2d at 1S7 {footnote omitted).
104 Nev. 699, 700 (1988) Santillanes v. State
Santillanes' failure to take [a] polygraph test and the prosecutor's comments thereon
constituted prejudicial error. Id. at 51, 714 P.2d at 187 (footnote omitted). We therefore
reversed the prior judgment of the district court and remanded the case or a new trial. Id. On
remand, a jury once again convicted Santillanes of first degree murder with the use of a
deadly weapon. This appeal followed. We now affirm the district court's judgment of
conviction.
[Headnote 1]
1. In Santillanes, we focused on the inadmissibility of polygraph evidence,
1
and the
likelihood that a jury might be prejudiced even more by a defendant's refusal to submit to
testing than by the evidence of results adverse to him coupled with proof of [the test's]
scientific imperfection. Id. at 51, 714 P.2d at 186 (quoting State v. Driver, 38 N.J. 255, 183
A.2d 655 (1962)). In keeping with our decision in the matter, the prosecution at Santillanes'
retrial omitted any reference to the polygraph test. Instead, the prosecution referred to
Santillanes' failure to attend two meetings with the police to which Santillanes had
voluntarily agreed. In the prosecution's view, failure to attend the meetings constituted
evidence of flight and, when considered with Santillanes' subsequent absence without official
leave from the Air Force, exhibited Santillanes' consciousness of guilt.
Santillanes contends, however, that between the time he initially cooperated with the
police by providing a statementat which time the police informed him of his Miranda
rightsand the scheduled meetings, he decided to assert his right to remain silent. According
to Santillanes, the prosecution's references to the aborted meetings were impermissible
comments on his right to remain silent, and, thus, violations of the due process clause of the
fourteenth amendment to the United States Constitution. In support of his argument,
Santillanes primarily relies on Doyle v. Ohio, 426 U.S. 610 (1976).
Initially, we note that the facts of this case are readily distinguishable from those presented
in Doyle. The defendants in Doyle did not waive their Miranda rights nor did they voluntarily
agree to meet and discuss their case with the police as did Santillanes. Concerns of
fundamental fairness present in Doylethat a defendant, having been informed of his right to
remain silent, should have this silence later used against himare not present here. See
United States v. Mitchell, 558 F.2d 1332 (8th Cir. 1977) (testimony about defendant's silence
admissible where defendant waived Miranda rights, provided an exculpatory statement to
police, and, when faced with evidence contradicting his statement, remained silent).
____________________

1
The results of a polygraph test are inadmissible unless both parties have agreed otherwise by a signed,
written stipulation. Santillanes, 102 Nev. at 50, 714 P.2d at 186 (citing Aguilar v. State, 98 Nev. 18, 639 P.2d
533 (1982)).
104 Nev. 699, 701 (1988) Santillanes v. State
defendant waived Miranda rights, provided an exculpatory statement to police, and, when
faced with evidence contradicting his statement, remained silent).
More importantly, we are not convinced that the prosecutor's references to Santillanes'
failure to attend the meetings were comments on Santillanes' silence. In consenting to meet
with the police, subsequently cancelling the meeting by telephone, and later agreeing to
another meeting just prior to fleeing to Mexico, Santillanes was anything but silent. Rather,
the prosecutor's references to the aborted meetings were specific examples of Santillanes'
conduct. From this conduct, as well as from Santillanes' flight to Mexico, the jury could
reasonably infer Santillanes' consciousness of guilt. While the prosecutor's comments may
have suggested to the jury that Santillanes did not wish to talk further with the police, the jury
could have inferred as much from Santillanes' flight to Mexico. Maresca v. State, 103 Nev.
669, 748 P.2d 3 (1987). We conclude, therefore, that evidence of the aborted meetings was
properly admitted as evidence of flight, and that the prosecutor did not improperly comment
on Santillanes' silence.
[Headnote 2]
2. Santillanes next contends that the district court erred in allowing testimony about his
absence without official leave from the Air Force. In Santillanes' view, the testimony
constituted evidence of an uncharged crime and was more prejudicial than probative.
Other criminal acts of a defendant are admissible if substantially relevant and if not offered
for the purpose of showing the likelihood that he committed the act of which he is accused in
conformity with a trait of character. Williams v. State, 95 Nev. 830, 833, 603 P.2d 694, 696
(1979) (citation omitted); NRS 48.045(2). See Williams v. State, 85 Nev. 169, 451 P.2d 848
(1969) (all circumstances of flight may be shown including offenses committed during flight).
In addition, for evidence of other criminal acts to be admissible its probative value must
outweigh any prejudicial effect. Williams, 95 Nev. at 833, 603 P.2d at 696 (citation omitted);
NRS 48.035(1).
We believe that Santillanes' decision to absent himself from his military post and to face
the penalties associated therewith was substantially relevant as further evidence of flight.
Indeed, much of the probative value of the flight evidence is supplied by Santillanes' decision
to leave his post. By choosing such a penalty laden course, he strengthened the inference of
his consciousness of guilt. The record on appeal discloses that the district court carefully
weighed the probative value of this evidence against its possible prejudicial effect.
104 Nev. 699, 702 (1988) Santillanes v. State
possible prejudicial effect. We are not convinced that the district court's decision was
manifestly wrong and thus will not disturb it on appeal. Daly v. State, 99 Nev. 564, 567, 665
P.2d 798, 801 (1983).
[Headnote 3]
3. As his third assignment of error Santillanes contends that the prosecutor, Mr. Seaton,
committed forensic misconduct by expressing his personal belief if Santillanes' guilt.
2
Appellant argues that Mr. Seaton's comments were so inherently prejudicial that they
precluded appellant from receiving a fair trial. We agree that Mr. Seaton's remarks were
improper; however, we do not believe a reversal is warranted in this case.
It is prosecutor's right to state fully his views as to what the evidence shows. State v.
Green, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965) (citation omitted). Statements of personal
opinion as to the defendant's guilt, however, are improper. Yates v. State, 103 Nev. 200, 734
P.2d 1252 (1987).
In making the comments set forth in the margin, Mr. Seaton distinctly traversed the
boundary separating proper from improper argument.
____________________

2
In support of his contention, Santillanes cites the following:
MR. SEATON: Now, to get down to the interesting question, whodunit? That's what we are here about.
That is what Mr. Handfuss is going to talk to you about. And I am going to spend the rest of my time
going over the factors that lead meand the evidenceto believe that Mr. Santillanes over there is the
person who killed Pamela Leavitt.
MR. HANDFUSS: Excuse me. I object. I am sorry, counsel, but may we approach the bench?
THE COURT: Yes.
(Discussion at the bench which was not reported.)
MR. SEATON: Is there no objection, Mr. Handfuss?
MR. HANDFUSS: In that case, there is no objection, Mr. Seaton.
MR. SEATON: Okay.
Well, let me explain what just went on. Doggonit! You people shouldn't be kept in the dark.
I think I said to youand if I didn't, I am going to say it now. I said to you that the evidence or the
things that lead me to believe from the evidence that Mr. Santillanes committed the crimewell, I am not
allowed to give you my opinion. Let me say that right here and now. You don'tdon't any of you be
swayed by my opinion just simply because it is my opinion.
You may be swayed by what you heard up here on this stand and everything that is sitting over there
on that table. That's the evidence in this case.
And if I said the wrong thing, Mr. Handfuss, I .apologize
But anything I say to you it is based on only that which I have heard, the same evidence that you have
heard. And so that is what I am talking from.
But I continue to state that I believe the evidence has shown us that Mr. Santillanes is indeed guilty of
this crime.
104 Nev. 699, 703 (1988) Santillanes v. State
improper argument. His initial statement certainly had the tenor of an expression of personal
belief in Santillanes' guilt. Then, following an objection from the defense counsel, and after
Mr. Seaton apparently promised the court at side-bar that he would himself correct his
misbehavior, Mr. Seaton went on quite clearly to insinuate his beliefs into the record again.
We do not condone such conduct, and we hereby direct the District Attorney of Clark County
to take whatever administrative action may be necessary to assure the Mr. Seaton's
prosecutorial misconduct, so frequently repeated heretofore, does not again recur.
Nonetheless, while we conclude that Mr. Seaton's aforesaid comments were improper, we
do not believe they require reversal in this case. We note that Mr. Seaton's later comments did
not draw a further objection from defense counsel and, while they continued improperly to
suggest Mr. Seaton's personal beliefs, they at least correctly informed the jury that such
beliefs were not evidence and should not be relied upon.
[Headnote 4]
4. Santillanes also challenges the district court's decision to admit the results of a
serological electrophoresis test. The State's expert, Brian Wraxall, developed the test in
question, Multi-System electrophoresis analysis (Multi-System), to permit the identification
of several blood enzyme and protein types from a single dried blood sample. Mr. Wraxall
employed his process in this case to test bloodstains found on a pair of fatigue pants that
police recovered from appellant's apartment. He concluded that while the stain on the fatigues
was inconsistent with Santillanes' blood, it was consistent with that of the victim. Santillanes
argues that the Multi-System has not received general acceptance in the scientific community,
and that it was error to admit the results.
Preliminarily, we note that other courts that have considered the admissibility of
Multi-System test results have arrived at differing conclusions. Cf. People v. Young, 425
Mich. 470, 391 N.W.2d 270 (1986) (prosecution failed to establish scientific community's
general acceptance of Multi-System's reliability) with State v. Washington, 229 Kan. 47, 622
P.2d 986 (1981) (sufficient evidence of reliability and acceptance by scientific community
presented to admit expert testimony about test results).
In Warden v. Lischko, 90 Nev. 221, 224, 523 P.2d 6, 8 (1970) we rejected the evidentiary
use of narco-interrogation and the polygraph because neither method ha[d] received court
recognition as possessing the trustworthiness and reliability needed to accord the [test's]
results the status of competent evidence. Id. (citation omitted). We relied on Lischko in
American Elevator Co. v. Briscoe, 93 Nev. 665, 572 P.2d 534 (1977), where we decided that
a polygraph examiner did not fall within the testimony-by-experts statute, NRS 50.275,
because polygraph evidence had not received "general scientific acceptance." Id. at 671,
572 P.2d at 53S.
104 Nev. 699, 704 (1988) Santillanes v. State
decided that a polygraph examiner did not fall within the testimony-by-experts statute, NRS
50.275, because polygraph evidence had not received general scientific acceptance. Id. at
671, 572 P.2d at 538.
Our use of the phrase general scientific acceptance in Briscoe was not intended to signal
the adoption of a special test for the admission of scientific evidence.
3
As evidenced by our
reliance on Lischko, our intention in Briscoe was, and it continues to be, to assess the
admissibility of scientific evidence, like other evidence, in terms of its trustworthiness and
reliability.
4
With this in mind, we turn to whether the district court erred in admitting the
results of Mr. Wraxall's Multi-System test.
Prior to permitting Mr. Wraxall to testify about the test results, the district court conducted
an evidentiary hearing out of the jury's presence. There, Mr. Wraxall testified regarding the
Multi-System's methodology and the safeguards he observes in conducting tests. He testified
that he, as well as others whom he had instructed in the method, had verified the accuracy of
the method in blind trials.
5
In addition, the district court inquired of Mr. Wraxall regarding
the possibility of test error induced by the blood sample's age or possible contamination.
Counsel for the defense extensively cross-examined Mr. Wraxall.
6
At the conclusion of the
evidentiary hearing, the district court found the testing procedures to be sufficiently credible
to permit the introduction of the test results.
7
From our review of the testimony presented
at both the evidentiary hearing and at the trial, we believe that there was sufficient
evidence presented concerning the test's trustworthiness and reliability to permit the test
results to be presented to the jury.
____________________

3
The phrase general scientific acceptance, as well as the notion of a special test for the admission of
scientific evidence, finds its origin in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). In the sixty-five years
since Frye was decided we have neither cited to nor adopted the decision.

4
Of course, scientific evidence must also meet the other standards for admissibility such as relevancy and
probativeness. See NRS 48.025; NRS 48.035.

5
Mr. Wraxall testified that in over 1100 blind trials only two errors occurred. While independent testing
would certainly bolster the test's appearance of reliability, we do not believe that Mr. Wraxall's pride of
invention or financial interest in the process fatally flaws his results. Cf. Young, supra, 391 N.W.2d at 275-77
with Young, supra, 391 N.W.2d at 289-99 (Boyle, J., dissenting). Such matters affect the credibility of testimony
and are thus for the jury's determination.

6
We note that defense counsel did not call his own experts to testify nor was he obliged to. In establishing the
trustworthiness and reliability of the method, the burden rested solely with the prosecution, the proponent of the
evidence, to establish the method's admissibility by the necessary quantum of evidence. The defense bears no
burden whatsoever on this issue.

7
Judge Mosley also found that the Multi-System analysis was generally accepted in the forensic community.
This determination, while adding great weight to the conclusion that the test is trustworthy and reliable, is not
necessary for admission of the evidence.
104 Nev. 699, 705 (1988) Santillanes v. State
From our review of the testimony presented at both the evidentiary hearing and at the trial,
we believe that there was sufficient evidence presented concerning the test's trustworthiness
and reliability to permit the test results to be presented to the jury. In addition, we conclude
that the evidence met the normal standards of admissibility in that it was relevant, its
probative value outweighed any possible prejudicial effect, and it was neither misleading,
confusing, nor unduly consumptive of judicial time. See NRS 48.025; NRS 48.035. The
weight to be afforded the evidence was for the jury's determination. Deeds v. State, 97 Nev.
216, 626 P.2d 271 (1981). Accordingly, we conclude that, on this record, the district court did
not err in admitting the Multi-System test results. This conclusion, however, does not
constitute a finding that the test must hereafter be found reliable, regardless of what proofs
are made to appear to another court hereafter. Of course, in future cases, defense counsel will
remain entitled to challenge the test based on proofs they may be able to adduce concerning
it, and courts will remain free to make their own judgments in regard thereto.
We have carefully reviewed appellant's other assignments of error and find them to be
without merit. The judgment of conviction is affirmed.
Steffen, Young, Springer, and Mowbray, JJ., concur.
____________
104 Nev. 705, 705 (1988) Lara v. County of Yolo
TOM ARVICIO LARA, Appellant, v. THE COUNTY OF YOLO on Behalf of MONICA
CRUZ CONSTANCIO, a Minor, Respondent.
No. 18357
December 21, 1988 765 P.2d 1151
Appeal from an order of the district court, ordering appellant to pay continuing child
support. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
California county filed suit in California, seeking to recover reimbursement from a
putative father for welfare benefits paid to a child. After the action was transferred to Nevada,
the district court ordered the payment of support. Putative father appealed. The Supreme
Court held that a trial court acting under the Revised Uniform Reciprocal Enforcement of
Support Act has jurisdiction to determine paternity.
Affirmed.
John C. Hope, Jr., Reno, for Appellant.
104 Nev. 705, 706 (1988) Lara v. County of Yolo
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Jarold M.
Young, Chief Deputy District Attorney, and Gregory R. Shannon, Deputy District Attorney,
Washoe County, for Respondent.
1. Children Out-of-Wedlock.
Fact that no support order had been entered in paternity action did not deprive trial court of jurisdiction to
determine paternity and order payment of support in action under Revised Uniform Reciprocal
Enforcement of Support Act. NRS 125B.020, subds. 1, 4, 130.220, 130.245.
2. Parent and Child.
Revised Uniform Reciprocal Enforcement of Support Act specifically allows for determination of
paternity by trial court when necessary evidence is before court; modern medical tests for determining
paternity are quite accurate and do not require presence of all parties in same jurisdiction, and those tests
can readily provide court with sufficient evidence to determine paternity and, thus, burden of proving
paternity is not too great an imposition on resources of attorney general. NRS 126.011 et seq., 126.071,
subd. 1, 126.121, subd. 1, 126.151, subd. 3, 130.220, 130.245.
OPINION
Per Curiam:
This is an appeal from an order of the district court, entered pursuant to the Revised
Uniform Reciprocal Enforcement of Support Act (RURESA), NRS 130.010 et seq. The order
requires the appellant to pay continuing child support. For the reasons expressed in this
opinion, we affirm the order of the district court.
Monica Cruz Constancio, appellant's daughter, was born on August 9, 1975. Monica's
mother did not inform Lara of the child's birth. Monica began receiving welfare benefits in
1982; subsequently, the Welfare Department filed a complaint in Yolo County, California,
seeking reimbursement from Lara for $2,141.83 in benefit payments. The complaint was filed
under California's RURESA statute, Civ. Proc. Code 1650 et seq. (West 1982), and
transferred to Washoe County District Court, which could assert personal jurisdiction over
Lara.
The appellant disputed the question of paternity, but agreed to submit to a blood test. He
also stipulated to the accuracy of blood tests performed on himself, Monica and her mother,
and allowed the admission of the test results as evidence of his paternity. The district court
reviewed the evidence and declared that Lara was Monica's father. The court then ordered
Lara to reimburse Yolo County for benefits paid by the Welfare Department on Monica's
behalf. Lara complied with this order.
104 Nev. 705, 707 (1988) Lara v. County of Yolo
A second complaint was filed against Lara by Yolo County in August, 1985. The
complaint asked for reimbursement of additional benefits paid for Monica and continuing
monthly payments for her support. The district court held a hearing and determined that Lara
could afford to pay $100 per month. It then entered an order that Lara should pay $100 per
month until Monica reached her majority or became emancipated. This order is the sole
subject of this appeal. Appellant contends the district court had no jurisdiction to initiate an
order for continuing support, citing our decisions in Vix v. State of Wisconsin, 100 Nev. 495,
686 P.2d 226 (1984), and Taylor v. Vilcheck, 103 Nev. 462, 745 P.2d 702 (1987).
[Headnote 1]
Vix and Taylor both state that a RURESA court can only enforce a pre-existing duty of
support. This does not prevent a district court from enforcing the duty of support which
Nevada law imposes upon a parent at the birth of his or her child. NRS 125B.020(1), (4).
When Monica was born, Lara acquired the duty to support her. This duty was not enforced
until the complaint was filed. The fact that it was not previously enforced does not mean it
did not exist. See Johnson v. Ross, 405 N.E.2d 569, 571 (Ind.App. 1980). The RURESA
statutes specifically state that a court may determine paternity and order the payment of
support. NRS 130.220(1), 130.245.
1
This is consonant with the general purpose of
RURESA, which is to facilitate the enforcement of support obligations across state lines. See
NRS 130.030; Taylor, supra, 103 Nev. at 462, 745 P.2d at 703.
This conclusion is not inconsistent with our former decisions, because the facts of this case
are completely different from the facts presented by earlier cases. Our preceding RURESA
decisions have focused upon the effect of a RURESA support order on a prior court decree. In
State ex rel. Welfare Div. v. Hudson, 97 Nev. 386, 632 P.2d 1148 (1981), the father held a
divorce decree which absolved him of his lawful duty to support his offspring. State v. Vine,
99 Nev. 278, 662 P.2d 295 (1983), held that support payments may not be imposed upon a
man whose parental rights and duties had been extinguished by a court order.
____________________

1
NRS 130.220 Order of support.
1. If the responding court finds a duty of support, it may order the obligor to furnish support or
reimbursement therefor and subject the property of the obligor to that order.
NRS 130.245 Paternity. If the obligor asserts as a defense that he is not the father of the child for whom
support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present
at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not
necessary, the court may adjudicate the paternity issue. Otherwise the court may adjourn the hearing until the
paternity issue has been adjudicated.
104 Nev. 705, 708 (1988) Lara v. County of Yolo
support payments may not be imposed upon a man whose parental rights and duties had been
extinguished by a court order. Vix concerned a father who had obtained custody by decree,
and therefore did not owe a duty of support. Taylor concerned two families whose
relationships had been established by divorce decrees.
[Headnote 2]
In this case, there is no prior court order. Lara's duty to support Monica, which was
imposed upon him by her birth, has not been lifted, excused or extinguished by a court of law.
The court order which now requires Lara to pay continuing support simply does not modify or
nullify a previous decree. Thus it does not conflict with the legislature's determination that a
RURESA court should not modify a prior order. See Taylor, supra, 103 Nev. at 463, 745 P.2d
at 704. Neither does it conflict with our prior holdings in Hudson, Vix or Taylor which
disapproved the nullification or modification or a prior court order.
Additionally, the determination of parenthood does not involve the complex, burdensome
litigation which is necessitated by a request for an increase in support due to changed
circumstances. See Taylor, supra, 103 Nev. at 470, 745 P.2d at 708. RURESA specifically
allows for the determination of paternity by the district court when the evidence required is
before it.
2
Lara agreed to submit to a blood test. Monica and her mother were also tested.
Lara agreed to accept the accuracy of the test results and agreed that they could be submitted
as evidence. Modern medical tests of this nature are quite accurate, and do not require the
presence of all parties in the same jurisdiction. They can readily provide the court with
sufficient evidence to determine paternity. We conclude that the burden of proving
parenthood is not too great an imposition of the resources of the attorney general.
Appellant was afforded a hearing on the issue of paternity, and another hearing on the
issue of his ability to pay support. The district court did not abuse its discretion in ordering
Lara to pay $100 per month in child support. We therefore affirm the order of the district
court.
____________________

2
If necessary, further adjudication could proceed according to the parentage statutes, NRS 126.011 et seq.
An interested third party may bring an action to declare the existence of the parental relationship. NRS
126.071(1). The court may order blood tests of any person involved, and the results of the tests may be received
as evidence. NRS 126.121(1). If the parties do not accept the court's pretrial recommendations based on the
available evidence, they have the right to a jury trial. NRS 126.151(3). Lara did not demand a jury trial, and did
not appeal from the court's finding of paternity. Therefore, we do not need to address this issue at this time.
____________
104 Nev. 709, 709 (1988) State v. State Engineer
THE STATE OF NEVADA; NEVADA STATE BOARD OF AGRICULTURE, Appellants,
v. PETER G. MORROS, STATE ENGINEER, NEVADA DIVISION OF WATER
RESOURCES; UNITED STATES OF AMERICA, on Behalf of the BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR; NEVADA WILDLIFE
FEDERATION and SIERRA CLUB, Respondents.
PETER G. MORROS, STATE ENGINEER, NEVADA DIVISION OF WATER
RESOURCES; UNITED STATES OF AMERICA, on Behalf of the BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR and the UNITED STATES
FOREST SERVICE, DEPARTMENT OF AGRICULTURE; NEVADA WILDLIFE
FEDERATION and SIERRA CLUB, Cross-Appellants, v. THE STATE OF NEVADA;
NEVADA STATE BOARD OF AGRICULTURE; JAMES J. WRIGHT; SMITH
BROTHERS' OX RANCH; WM. MAX SPRATLING; W. E. ROUSE; WARM CREEK
RANCH; ELKO COUNTY, a Political Subdivision of the State of Nevada; MOUNTAIN
STATES LEGAL FOUNDATION; NEVADA WOOLGROWERS ASSOCIATION;
NEVADA CATTLEMEN'S ASSOCIATION and HUMBOLDT COUNTY, a Political
Subdivision of the State of Nevada, Cross-Respondents.
No. 18105
December 21, 1988 766 P.2d 263
Appeal from an order of the district court upholding the Nevada State Engineer's grant of
the application by the United States for a water right, and cross-appeal from the portion of the
district court's order reversing the Engineer's grant of applications by the United States for
certain other water rights. Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
State Engineer granted applications by the United States for certain appropriative water
rights, and parties who opposed the applications appealed. The district court upheld the grant
of one application, and reversed the grant of the other applications. The State Board of
Agriculture appealed the portion of the decision affirming the grant, and the State Engineer,
the United States, and others, appealed the reversal of the grant of the other applications. The
Supreme Court held that: (a) diversion of water is not required before it may be appropriated;
(2) the grant of a water right to a natural lake for public recreation purposes was not against
public policy; and {3) the United States could be granted water rights for stock and
wildlife watering even though it owns no livestock and no wildlife.
104 Nev. 709, 710 (1988) State v. State Engineer
against public policy; and (3) the United States could be granted water rights for stock and
wildlife watering even though it owns no livestock and no wildlife.
Affirmed in part; reversed in part.
Brian McKay, Attorney General, and Harry W. Swainston, Deputy Attorney General,
Carson City, for Appellants/Cross-Respondents The State of Nevada and Nevada State Board
of Agriculture.
Christopher H. Meyer, Boulder, Colorado, for Respondent/Cross-Appellant Nevada
Wildlife Federation.
Hill, Cassas, de Lipkau & Erwin, Reno, for Respondent/Cross-Appellant Peter G. Morros,
State Engineer.
Robert L. Klarquist, Washington, D.C., for Respondent/Cross-Appellant United States of
America.
David A. Hornbeck, Reno, for Respondents/Cross-Appellants Nevada Wildlife Federation
and Sierra Club.
Laurens H. Silver, San Francisco, California, for Respondent/Cross-Appellant Sierra Club.
Jones, Jones, Close & Brown and Charles McCrea, Las Vegas; P. Michael Marfisi, Elko;
and Eric Twelker, Denver, Colorado, for Cross-Respondent Mountain States Legal
Foundation.
Wilson & Barrows, Elko, for Cross-Respondents James J. Wright, Smith Brothers' Ox
Ranch, Wm. Max Spratling, W. E. Rouse, Warm Creek Ranch, Nevada Woolgrowers
Association, and Nevada Cattlemen's Association.
Mark D. Torvinen, District Attorney, Elko County, for Cross-Respondent Elko County.
Jack T. Bullock, District Attorney, Humboldt County, for Cross-Respondent Humboldt
County.
1. Statutes.
Agency responsible for administering act has implied power to construe it as necessary precedent to
administrative action; great deference is given to agency's interpretation when it is within language of
statute.
2. Waters and Water Courses.
Physical diversion of water is not required to appropriate water. NRS 533.035, 533.335, 533.335,
subds. 5, 6.
104 Nev. 709, 711 (1988) State v. State Engineer
3. Waters and Water Courses.
Grant of application by United States for appropriative water rights in natural lake, for public recreation
and fishery purposes, was not precluded by fact that no water would be diverted. NRS 533.030, subd. 2,
533.035, 533.335, 533.335, subds. 5, 6.
4. Waters and Water Courses.
Grant of water appropriation rights in situ to United States in regard to natural lake, without diversion, for
public recreation purposes, was not against public interest. NRS 533.370, subd. 3.
5. Waters and Water Courses.
For water appropriation purposes, stock watering is beneficial use of water. NRS 533.490, subd. 1.
6. Waters and Water Courses.
Providing water to wildlife is beneficial use of water. NRS 501.181, subd. 3(c), 533.030, subd. 2,
533.367.
7. Waters and Water Courses.
United States acts in its proprietary capacity as landowner when federal agency seeks to appropriate
water under state law for livestock and wildlife watering; although United States does not own livestock
and wildlife, it owns land on which water is to be put to beneficial use. NRS 533.010; Federal Land
Policy and Management Act of 1976, 40(b), 43 U.S.C.A. 1751(b).
8. Waters and Water Courses.
United States is entitled to equal treatment under state water law. NRS 533.010.
9. Waters and Water Courses.
Applications by United States agencies to appropriate water for application to beneficial uses pursuant to
their land management functions must be treated on equal basis with applications by private landowners.
NRS 533.010.
10. Waters and Water Courses.
United States could obtain water rights for stock watering and wildlife watering, despite fact that United
States owns no livestock and does not own wildlife. NRS 533.010.
OPINION
Per Curiam:
This is an appeal from an order of the district court affirming the Nevada State Engineer's
grant of an application by the United States for a water right and a cross-appeal from the
district court's order reversing the state engineer's grant of applications by the United States
for certain other water rights.
STATEMENT OF FACTS
In a ruling issued on July 26, 1985, The Nevada State Engineer issued a ruling granting a
number of appropriative water right applications of the United States Bureau of Land
Management (BLM) and overruling protests to those applications. The ruling approved a
number of applications to appropriate water for stockwatering and wildlife watering
purposes and an application to appropriate the waters of Blue Lake, a natural lake in
Humboldt County, Nevada, for public recreation and fishery purposes.
104 Nev. 709, 712 (1988) State v. State Engineer
approved a number of applications to appropriate water for stockwatering and wildlife
watering purposes and an application to appropriate the waters of Blue Lake, a natural lake in
Humboldt County, Nevada, for public recreation and fishery purposes. On October 4, 1985,
the state engineer issued a ruling granting applications of the United States Forest Service
(Forest Service) for appropriative water rights for recreation, stockwatering and wildlife
watering purposes. The engineer's decision overruled protests to a number of the applications
for stock and wildlife watering purposes.
The Attorney General of Nevada, on behalf of the Nevada State Board of Agriculture
(Board of Agriculture), and other parties sought judicial review of the state engineer's
decisions. In an order entered on February 5, 1987, the district court upheld the state
engineer's approval of the Blue Lake application, but reversed his decisions approving the
applications to appropriate water for stockwatering and wildlife watering purposes.
The Board of Agriculture appeals the portion of the district court's order affirming the state
engineer's grant of the Blue Lake application. The state engineer cross-appeals the portion of
the district court's order reversing his grant of the stock and wildlife watering applications.
The state engineer is joined by the United States of America, on behalf of the United States
Bureau of Land Management and the United States Forest Service, and by the Nevada
Wildlife Federation and the Sierra Club. The Board of Agriculture appears as
cross-respondent and is joined by several parties.
THE BLUE LAKE APPLICATION
The Blue Lake application is for a water right to the waters of Blue Lake in situ, in place
as a natural body of water. The BLM manages the land surrounding the lake and desires this
water right to assure maintenance of the pool of Blue Lake for public recreation and fishery
purposes. The Board of Agriculture contends that Nevada water law absolutely requires a
physical diversion of water to obtain a water right, and that the district court therefore erred in
affirming the state engineer's grant of a right to the water of Blue Lake in situ.
[Headnote 1]
Water appropriation in Nevada is governed by statute. NRS 533.030(1).
1
See generally
NRS Chapters 533 and 534. Water may be appropriated only after obtaining a permit from
the state engineer. See NRS 533.325. In reviewing the district court's decision we are
mindful of the statutory provision that "[t]he decision of the state engineer shall be prima
facie correct, and the burden of proof shall be upon the party attacking the same."
____________________

1
NRS 533.030(1) provides: Subject to existing rights, all water may be appropriated for beneficial use as
provided in this chapter and not otherwise.
104 Nev. 709, 713 (1988) State v. State Engineer
decision we are mindful of the statutory provision that [t]he decision of the state engineer
shall be prima facie correct, and the burden of proof shall be upon the party attacking the
same. NRS 533.450(9). We have previously held that [a]n agency charged with the duty of
administering an act is impliedly clothed with power to construe it as a necessary precedent to
administrative action and that great deference should be given to the agency's interpretation
when it is within the language of the statute. Clark Co. Sch. Dist. v. Local Gov't, 90 Nev.
442, 446, 530 P.2d 114, 117 (1974). While not controlling, an agency's interpretation of a
statute is persuasive. Nevada Power Co. v. Public Serv. Comm'n, 102 Nev. 1, 4, 711 P.2d
867, 869 (1986).
[Headnote 2]
The Board of Agriculture contends that the fact that an application for a permit to
appropriate water must contain a description of the proposed location and means of diverting
water indicates that a physical diversion is required to appropriate water in Nevada. See NRS
533.335(5) and (6). Respondents argue that under NRS 533.035, which provides that
[b]eneficial use shall be the basis, the measure and the limit of the right to the use of water,
beneficial use is the only essential requirement for water appropriation in Nevada.
Respondents assert that the contents of an application specified in NRS 533.325(5) and (6)
serve only informational purposes.
[Headnote 3]
After carefully considering the parties' arguments and the relevant statutory provisions and
authorities, we conclude as follows. The legislature explicitly defined the scope of the right to
appropriate water when it enacted NRS 533.035. That provision specifies that beneficial use
is the basis, the measure and the limit of the right to the use of water. NRS 533.335, on the
other hand, lists information that must be provided in an application to appropriate water; it is
directed to informational purposes. We cannot derive an absolute diversion requirement from
NRS 533.335(5) and (6) when no such requirement appears in the NRS 533.035 definition of
the scope of the right to appropriate water. Accordingly, we conclude that no absolute
diversion requirement precludes the granting of an in situ water right to the water of Blue
Lake. The following considerations are relevant to our decision.
The Board of Agriculture cites Prosole v. Steamboat Canal Co., 37 Nev. 154, 140 P. 720
(1914) as authority for the existence of an absolute diversion requirement. In Prosole this
court stated that both diversion and application to beneficial use were required to appropriate
water. Id. at 160, 140 P. at 722. Prosole, however, involved an appropriation that occurred
prior to the enactment of the statutory water law.
104 Nev. 709, 714 (1988) State v. State Engineer
however, involved an appropriation that occurred prior to the enactment of the statutory water
law. The Prosole court did not derive these requirements from the statutes. Consequently,
Prosole is not good authority for interpreting the statutes on this issue.
This court has defined a vested water right as a right to use water [that] has become fixed
either by actual diversion and application to beneficial use or by appropriation according to
the manner provided in the water law. . . . Application of Filippini, 66 Nev. 17, 22, 202 P.2d
535, 537 (1949) (emphasis added). Filippini indicates that the statutory requirements are
distinct from the requirements for water appropriation in effect before enactment of the
Nevada Water Law Act in 1913. Furthermore, it is evident that the statutory scheme requiring
appropriators to obtain permits from the state engineer superseded a primary purpose of any
pre-statutory diversion requirement, providing notice of an appropriation to other water users
on a watercourse.
This court opined in Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 172, 295 P. 772, 774
(1931) that beneficial use was the only indispensable requirement to appropriate water, and
that any pre-statutory diversion requirement arose from the practical necessity for a diversion
in agriculture, mining and similar uses of water. The court stated that under certain conditions
it could recognize an appropriation of water without a diversion when no diversion was
needed to put the water to beneficial use. Id. at 173, 295 P. at 774-5.
Respondents argue that the lack of a diversion requirement for stockwatering
appropriations belies an absolute diversion requirement for water appropriation. The Board of
Agriculture responds that stockwatering constitutes a diversion, although not by mechanical
means. The Board of Agriculture correctly maintains that stockwatering appropriation
without mechanical diversion was established by practical necessity and longstanding custom
and is specifically permitted by statute and by decisions of this court. See NRS 533.485 to
533.510; Waters of Horse Springs v. State Engineer, 99 Nev. 776, 671 P.2d 1131 (1983);
Steptoe Live Stock Co., 53 Nev. 163, 295 P. 772.
The absence of a diversion requirement for stockwatering appropriation reflects the lack of
a practical need for a physical diversion in order to water livestock. Consequently, the Nevada
water law conformed to the practical demands of stockwatering. See Steptoe Live Stock Co.,
53 Nev. 163, 295 P. 772. Many recreational uses of water also do not demand a physical
diversion of water. Nevada water law likewise conformed to the practical necessities of
recreation as a use of water.
104 Nev. 709, 715 (1988) State v. State Engineer
In 1969 the legislature enacted NRS 533.030(2), which recognizes recreation as a
beneficial use of water.
2
Diversions are not needed for and are incompatible with many
recreational uses of water. Therefore, enactment of NRS 533.030(2) mandates recognition of
in situ water appropriation for recreation. See McClellan v. Jantzen, 547 P.2d 494, 496
(Ariz.Ct.App. 1976) (when wildlife, including fish' and . . . when recreation' were added to
the purposes for appropriation, the concept of in situ appropriation of water was
introducedit appearing to us that these purposes could be enjoyed without a diversion).
See also State, Dept. of Parks v. Idaho Dept. of Water Admin., 530 P.2d 924, 929 (Idaho
1974).
[Headnote 4]
The Board of Agriculture also contends that the grant of a water right for Blue Lake to a
United States agency is against the public interest in Nevada and that pursuant to NRS
533.370(3) the state engineer should have denied the application on that basis.
3
We see no
threat to the public interest, however, in the grant of a water right to Blue Lake for public
recreation purposes to a public agency such as the BLM. The BLM manages the land
surrounding the lake for recreation and seeks a non-consumptive water right that will not
reduce the amount of water presently available for other uses. Livestock and wildlife retain
access to the water of Blue Lake under the district court's order.
For the reasons given above, we hold that Nevada water law recognizes and permits water
appropriation in situ, without a diversion, for public recreation purposes. The district court
properly upheld the engineer's approval of the Blue Lake permit, and its decision upholding
the Blue Lake permit is affirmed.
THE STOCK AND WILDLIFE WATERING
PERMIT APPLICATIONS
The district court relied on this court's holding in Prosole v. Steamboat Canal Co., 37 Nev.
154, 140 P. 720 (1914), as authority for reversing the state engineer's grant of permits to the
BLM and United States Forest Service to develop new water sources for stock and wildlife
watering. In Prosole, this court held that the person who applies the water to the soil, for a
beneficial purpose, is the actual appropriator and the owner of the water right, even if
someone else, such as a canal company, diverts the water from its natural course. Id. at
162, 140 P. at 723.
____________________

2
NRS 533.030(2) provides: The use of water, from any stream system as provided in this chapter and from
underground water as provided in NRS 534.080, for any recreational purpose, is hereby declared to be a
beneficial use.

3
NRS 533.370(3) provides, in pertinent part, that where a proposed appropriation threatens to prove
detrimental to the public interest, the state engineer shall reject the application and refuse to issue the permit
asked for.
104 Nev. 709, 716 (1988) State v. State Engineer
the water right, even if someone else, such as a canal company, diverts the water from its
natural course. Id. at 162, 140 P. at 723.
The BLM and Forest Service intend to provide the water requested in the applications to
the livestock of grazing permit holders on federal range lands. Wildlife would also have
access to the water. The district court reasoned that since the federal agencies owned no
livestock, the United States could not put the water to beneficial use. Rather, the court stated,
owners of livestock actually put water appropriated for stockwatering to beneficial use. The
district court concluded that therefore under Prosole the United States could not appropriate
water for stockwatering. The district court applied the same reasoning to wildlife watering.
The court noted that the United States does not own the wildlife which is to receive water,
because no one owns animals in the wild.
[Headnote 5]
We conclude that the district court applied Prosole in an excessively rigid fashion. The
proposed new water sources are dedicated to providing water to livestock and wildlife. These
are beneficial uses of water. Nevada law and longstanding custom recognize stockwatering as
a beneficial use of water. See NRS 533.490(1); Waters of Horse Springs, 99 Nev. 776, 671
P.2d 1131; Steptoe Live Stock Co., 53 Nev. 163, 295 P. 772.
[Headnote 6]
Wildlife watering is encompassed in the NRS 533.030(2) definition of recreation as a
beneficial use of water. Nevada law recognizes the recreational value of wildlife, NRS
501.100(2),
4
and the need to provide wildlife with water. See NRS 501.181(3)(c);
5
533.367.
6
Sport hunting, a common use of wildlife, is a form of recreation. The legislative history of
NRS 533.030(2) indicates that the legislature intended the provision to include wildlife
watering under the rubric of recreation as a beneficial use of water. See Minutes, Comm. on
Federal, State and Local Governments, 55th Legislative Sess. (March 7, 1969) {"the bill . . .
would include fishing and wild-life").
____________________

4
NRS 501.100(2) provides: The preservation, protection, management and restoration of wildlife within the
state contribute immeasurably to the aesthetic, recreational and economic aspects of these natural resources.

5
NRS 501.181(3)(c) specifies that establishing policies pertaining to the acquisition of water rights for the
management, propagation, protection and restoration of wildlife is included among the duties of the Nevada
Board of Wildlife Commissioners.

6
NRS 533.367 provides in relevant part that [b]efore a person may obtain a right to the use of water from a
spring or water which has seeped to the surface of the ground, he must ensure that wildlife which customarily
uses the water will have access to it.
104 Nev. 709, 717 (1988) State v. State Engineer
(the bill . . . would include fishing and wild-life). It follows that providing water to wildlife
is a beneficial use of water.
[Headnote 7]
In managing federal grazing lands, the United States acts in a proprietary capacity. See
Ansolabehere v. Laborde, 73 Nev. 93, 97-99, 310 P.2d 842, 844-45, cert. denied, 355 U.S.
833 (1957). See also Kleppe v. New Mexico, 426 U.S. 529 (1976). The new water sources
covered by the applications at issue will permit better use of areas of the public range where
grazing is limited by the lack of watering places, a problem recognized by this court. See
Ansolabehere, 73 Nev. at 104-05, 310 P.2d at 848. Congress has mandated development of
water sources for livestock and wildlife as a component of the federal land management
program. See 43 U.S.C. sections 1751(b) and 1901 to 1904. Thus, the United States acts in its
proprietary capacity as a landowner when federal agencies seek to appropriate water under
state law for livestock and wildlife watering. Although the United States does not own the
livestock and wildlife, it owns the land on which the water is to be put to beneficial use. In
addition, the United States benefits as a landowner from the development of new water
sources on federal land.
[Headnote 8]
The United States is recognized as a person for the purpose of water appropriation in
Nevada. NRS 533.010.
7
The district court correctly stated that the United States is to be
treated as a person . . . it is not to be feared, given preferential treatment and certainly not
discriminated against. Recently, the California Supreme Court held that the United States
could not be denied the same riparian water rights for national forest lands that private
riparian landowners enjoy under California water law. In re Water of Hallett Creek Stream
Sys., 749 P.2d 324 (Cal. 1988), cert. denied sub nom. California v. United States, ___ U.S.
___, 109 S.Ct. 71 (October 2, 1988) (No. 87-2010). Hallett Creek supports the principle that
the United States is entitled to equal treatment under state water law.
The Board of Agriculture argues that, in addition to the reasons given by the district court,
the engineer erred in granting water rights for stock and wildlife watering to the United States
because ownership of those water rights by the United States is against the public interest.
The Board of Agriculture states that once the water is subject to federal control it will not be
available for other uses at a later date. While this may be true, it is inherent in the prior
appropriation system of water rights, and we cannot discriminate against the United
States on that basis.
____________________

7
NRS 533.010 provides: As used in this chapter, person' includes the United States and this state.
104 Nev. 709, 718 (1988) State v. State Engineer
prior appropriation system of water rights, and we cannot discriminate against the United
States on that basis.
[Headnotes 9, 10]
Under NRS 533.010, therefore, applications by United States agencies to appropriate water
for application to beneficial uses pursuant to their land management functions must be treated
on an equal basis with applications by private landowners. Although the United States owns
no livestock and does not own wildlife, it owns land and may appropriate water for
application to beneficial uses on its land. The district court erred in deciding that the United
States could not obtain water rights for stockwatering and wildlife watering, and the portion
of its order denying those applications is vacated.
For the reasons stated above, the district court's decision upholding the state engineer's
grant of the Blue Lake application is affirmed. The district court's reversal of the stock and
wildlife applications approved by the state engineer is vacated and the engineer's decisions
are reinstated.
8

____________________

8
The Honorable Cliff Young, Justice, voluntarily disqualified himself from consideration of this appeal.
____________
104 Nev. 718, 718 (1988) Desert Valley Water Co. v. State Engineer
DESERT VALLEY WATER CO., (ROGER HOCKERSMITH dba, DESERT VALLEY
WATER (CO.), Appellant, v. STATE OF NEVADA, PETER G. MORROS, STATE
ENGINEER, Respondents.
No. 17543
December 21, 1988 766 P.2d 886
Appeal from an order of the district court dismissing appellant's petition for judicial
review of a decision by the state engineer. Fifth Judicial District Court, Nye County; William
P. Beko, Judge.
State engineer denied water company's applications which sought the use of underground
water, and water company petitioned for review. The district court dismissed the petition, and
water company appealed. The Supreme Court held that every person affected by the
engineer's order was not required to be served with notice of appeal within the thirty-day
limitations period.
Reversed.
E. A. Hollingsworth, Reno, for Appellant.
104 Nev. 718, 719 (1988) Desert Valley Water Co. v. State Engineer
Brian McKay, Attorney General, Carson City, and George Benesch, Deputy Attorney
General, Carson City, for Respondents.
Administrative Law and Procedure; Waters and Water Courses.
Notice is not required to be given every person affected by state engineer's order or decision before
district court may entertain appeal from order or decision; timely notice to state engineer and, at minimum,
to those parties who have participated in proceedings, satisfies jurisdictional requirement. NRS 533.450,
subd. 3.
OPINION
Per Curiam:
On May 6, 1977, appellant Desert Valley Water Co. (Desert Valley) filed twenty-one
applications with the office of the state engineer, seeking the use of underground water in the
Tonopah area. There were no protests filed against these applications. The state engineer
considered the applications, but denied all of them on December 19, 1985 as adversely
affecting existing rights and detrimental to the public interest and welfare. NRS 533.370(3).
Desert Valley appealed this decision to the district court, filing its appeal and noticing the
state engineer within thirty days of the denial as required by statute. NRS 533.450(1),(3).
1
No other persons or entities were served with notice. The state engineer moved to dismiss the
appeal, asserting that the failure to serve notice upon persons affected by the denial prevented
the district court from obtaining jurisdiction over the appeal. The district court agreed, and
dismissed the appeal for lack of jurisdiction. In our opinion, the district court misconstrued
the statute; therefore, we reverse its order.
____________________

1
1. Any person feeling himself aggrieved by any order or decision of the state engineer, acting in person or
through his assistants or the water commissioner, affecting his interests, when such order or decision relates to
the administration of determined rights or is made pursuant to NRS 533.270 to 533.445, inclusive, may have the
same reviewed by a proceeding for that purpose. . . . Such order or decision of the state engineer shall be and
remain in full force and effect unless proceedings to review the same are commenced in the proper court within
30 days following the rendition of the order or decision in question and notice thereof is given to the state
engineer as provided in subsection 3.
. . .
3. No such proceedings may be entertained unless notice thereof, containing a statement of the substance of
the order or decision complained of, and of the manner in which the same injuriously affects the petitioner's
interests, has been served upon the state engineer, personally or by registered or certified mail, at his office at the
state capitol within 30 days following the rendition of the order or decision in question. A similar notice shall
also be served personally or by registered or certified mail upon the person or persons who may have been
affected by such order or decision.
104 Nev. 718, 720 (1988) Desert Valley Water Co. v. State Engineer
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).
The State has argued that NRS 533.450(3) prevents the district court from hearing an
appeal unless every person affected by the state engineer's order or decision is served with
notice within the thirty-day limitations period. We disagree. In the broadest sense, a decision
concerning the allocation of water affects every citizen of Nevada. In a populous area, such as
Clark County, many thousands of citizens are potentially affected by the grant or denial of an
application for water. Requiring notice to all such persons would impose a burden on the
appellant which might be impossible to overcome.
A fair reading of NRS 533.450 does not support respondents' assertion that such a
burdensome notice requirement must be met simply to allow the exercise of jurisdiction.
First, we note that the legislature used shall and not must when referring to notice upon
person or persons who may have been affected. NRS 533.450(3). Second, NRS 533.450(2)
2
provides that proceedings shall be informal, allowing participants a full opportunity to be
heard. Third, NRS 533.450(7)
3
provides that the rules of civil procedure apply to judicial
review of water decisions. NRCP 21 specifically states that misjoinder of parties is not
grounds for a dismissal. Furthermore, we have already held that the failure to provide the
additional notice required by NRS 533.450(3) is a technical defect which may not affect the
substantial rights of the parties. State Engineer v. American Nat'l Ins. Co., 88 Nev. 424, 426
n.1, 498 P.2d 1329, 1330 n.1 (1972). We are not persuaded that substantial rights necessarily
have been affected by appellant's failure to serve additional notice in this case.
We conclude that timely notice to the state engineer satisfies the jurisdictional
requirement. Notice should also be served, at a minimum, upon those parties who have
participated in the proceedings.
4
In this case, no protests were filed against Desert Valley's
applications, and no one appeared to claim an adverse interest during the proceedings.
____________________

2
2. The proceedings in every case shall be heard by the court, and shall be informal and summary, but full
opportunity to be heard shall be had before judgment is pronounced.

3
7. The practice in civil cases applies to the informal and summary character of such proceedings, as
provided in this section.

4
Wyoming requires notice to [a]ll parties directly interested in the appeal, and those who claim an adverse
interest. . . . Wyo. Stat. 41-5-517 (1977). Oregon requires notice to the state agency and parties of record in
the agency proceeding. Or. Rev. Stat. 183.482(2) (1987). Nevada patterned its
104 Nev. 718, 721 (1988) Desert Valley Water Co. v. State Engineer
Valley's applications, and no one appeared to claim an adverse interest during the
proceedings. Desert Valley met the jurisdictional requirements of the statute when it timely
served a copy of its appeal on the state engineer.
We recognize that the district court, in reviewing the state engineer's decision, has the
authority to affect the rights of many water users within the system. Ormsby County v.
Kearney, 37 Nev. 314, 142 P. 803 (1914). The district court may therefore order that other
parties be joined in the action. NRCP 19(a). Notice to persons or entities who might be
affected by the decision and their ensuing participation in the proceedings should be
encouraged. The addition of parties, however, better serves the purposes of the appeal statute
than outright dismissal. Appellant should not be completely foreclosed from exercising its
appeal rights merely because of failure to include all persons who might possibly have been
affected by the state engineer's decision.
We hereby reverse the order of the district court, and remand the matter for further
proceedings in accordance with this opinion.
____________________
water law after that of Wyoming and Oregon; however, the legislature did not adopt the specific language of the
notice requirements. See R. Clark, Waters and Water Rights, 23.2 (1984).
____________
104 Nev. 721, 721 (1988) Witherow v. State
JOHN PHILLIP WITHEROW, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 16651
JOHN WITHEROW, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 18495
December 21, 1988 765 P.2d 1153
Appeal from a judgment of conviction for attempted robbery with use of a deadly weapon
and the subsequent denial of post-conviction relief. Second Judicial District Court, Washoe
County; Jerry Carr Whitehead, Judge.
Defendant was convicted in the district court of attempted robbery with use of a deadly
weapon. Defendant appealed his conviction and subsequent denial of post-conviction relief.
The Supreme Court held that: (1) the appointment book of a California attorney with whom
the defendant claimed to have met on the date of the attempted robbery was sufficiently
trustworthy to be admissible; {2) the prosecutor's statements during closing argument
referring to the defendant's prior criminal history, indicating the prosecutor's belief that a
witness had lied on the stand, and incorrectly stating that the alibi defense had been
rejected in a prior hearing were improper; and {3) the improper arguments could not be
deemed harmless.
104 Nev. 721, 722 (1988) Witherow v. State
date of the attempted robbery was sufficiently trustworthy to be admissible; (2) the
prosecutor's statements during closing argument referring to the defendant's prior criminal
history, indicating the prosecutor's belief that a witness had lied on the stand, and incorrectly
stating that the alibi defense had been rejected in a prior hearing were improper; and (3) the
improper arguments could not be deemed harmless.
Reversed.
Douglas Norberg, Reno, for Appellant
Brian McKay, Attorney General, Carson City; and Mills Lane, District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
Appointment book of California attorney with whom defendant claimed to have met on date of alleged
attempted robbery was sufficiently trustworthy to be admissible over hearsay objection, even though
attorney had been unable to determine whether she or her secretary had made entry into appointment book.
NRS 51.135, subd. 1.
2. Criminal Law.
Prosecutor's references during closing argument to defendant's having been in prison were improper
references to defendant's prior criminal history. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Prosecutor's statement during closing argument that witness had lied on stand was impermissible opinion
on veracity of witness in circumstances in which veracity could well have determined ultimate issue of guilt
or innocence. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Prosecutor's statement during closing argument that alibi defense had been rejected in prior hearing was
improper reference to untrue matter that had not been contained in record; defendant was entitled to have
jury determine efficacy of his alibi defense on merits. U.S.C.A.Const. Amend. 6.
5. Criminal Law.
Prosecutor's improper arguments about defendant's prior criminal history, about prosecutor's personal
belief that witness had lied on stand, and incorrect statement that alibi defense had been rejected in prior
hearing could not be deemed harmless beyond a reasonable doubt; although evidence would have been
substantial enough to convict defendant in otherwise fair trial, it could not be said that verdict would have
been the same without the error. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
Appellant, John Witherow, was arrested for the attempted robbery at Goldilock's jewelry
store in Reno on March 12, 1984. Eyewitnesses placed appellant at the crime scene. One
witness was able to take appellant's photograph.
104 Nev. 721, 723 (1988) Witherow v. State
was able to take appellant's photograph. During appellant's jury trial, the district court refused
to admit into evidence the appointment book of Sandra Simon, a California attorney, whom
appellant claimed to have met with on March 12, 1984. The prosecutor during the jury trial
placed appellant in prison by referring to his relationships with other men while in prison.
The prosecutor also informed the jury that appellant had filed a habeas corpus petition while
in prison.
During closing arguments, the prosecutor argued that witnesses for appellant had lied and
failed to turn over alibi evidence to the State. The prosecutor also argued that appellant
should be found guilty because of his association with other convicted criminals. Finally, the
prosecutor told the jury that appellant's alibi defense had been considered and rejected at an
earlier hearing.
The jury found appellant guilty of attempted robbery with the use of a deadly weapon. The
district court found that appellant was an habitual criminal pursuant to NRS 207.010 and
sentenced him to serve a term of life imprisonment without the possibility of parole.
Appellant appealed his conviction and filed a post-conviction petition with the district court.
The district court denied appellant's post-conviction petition and this court consolidated the
appeals.
[Headnote 1]
Appellant contends that the district court erred by refusing to admit Sandra Simon's
appointment book into evidence. We agree. NRS 51.1351(1) 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 of the custodian or other qualified witness, is not
inadmissible under the hearsay rule unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
Ms. Simon testified that an appointment for appellant had been entered in her appointment
book for March 12, 1984. Ms. Simon was unable to determine if the entry had been made by
herself or her secretary. However, her testimony is not indicative of the lack of
trustworthiness that would make the appointment book inadmissible under NRS 51.1351(1).
Therefore, the district court erred by not admitting Ms. Simon's appointment book.
Appellant next contends that he was denied a fair trial because of prosecutorial
misconduct. Specifically, appellant contends that the prosecutor improperly referred to his
prior criminal record.
104 Nev. 721, 724 (1988) Witherow v. State
[Headnote 2]
Reference to prior criminal history is reversible error. Walker v. Fogliani, 83 Nev. 154,
425 P.2d 794 (1967). The test for determining a reference to prior criminal history is whether
the jury could reasonably infer from the evidence presented that the accused had engaged in
prior criminal activity. Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983).
Over appellant's objections, the prosecutor placed appellant in prison by referring to
appellant's relations with men while in prison. The prosecutor informed the jury that appellant
had filed a habeas corpus action while in prison. Applying the above test to the remarks to
which objections were made, we conclude that the jurors could have reasonably inferred that
appellant had been involved in prior criminal activity and that the remarks were improper
references to appellant's prior criminal history.
[Headnote 3]
Appellant also contends that the prosecutor improperly expressed his personal belief
concerning the evidence presented. The characterization of testimony as a lie is improper
argument. Harris v. United States, 402 F.2d 656 (1968). The prosecutor stated that a witness
had lied on the stand. This statement amounts to an opinion as to the veracity of a witness in
circumstances where veracity might well have determined the ultimate issue of guilt or
innocence. The statement was improper. Many strong adjectives could [have been] used [to
describe the testimony] but it was for the jury, and not the prosecutor, to say which witnesses
were telling the truth. . . . Harris 402 F.2d at 658.
[Headnote 4]
Finally, appellant contends that the prosecutor improperly presented false facts to the jury.
Factual matters outside the record are not proper subjects for argument. Collier v. State, 101
Nev. 473, 705 P.2d 1126 (1985). The prosecutor stated that appellant's alibi defense had been
rejected in a prior hearing. This fact was false and it was not contained in the record.
Appellant had the right to have the jury determine the efficacy of his defense upon the merits.
Thus, the prosecutor's statement was improper.
[Headnote 5]
Having concluded that improper arguments were made, it must next be determined
whether the errors were harmless beyond a reasonable doubt. Manning, 99 Nev. at 87, 659
P.2d at 850; see also Chapman v. California, 386 U.S. 18, 24 (1967). Appellant was charged
with a serious felony. The evidence against him was substantial enough to convict him in an
otherwise fair trial. However, it cannot be said without reservation that the verdict would
have been the same in the absence of error. Together the errors had the effect of undermining
appellant's defense. Thus, the cumulative effect of the errors denied appellant his right to a
fair trial.
104 Nev. 721, 725 (1988) Witherow v. State
the cumulative effect of the errors denied appellant his right to a fair trial. Therefore,
appellant's conviction must be reversed.
Accordingly, appellant's judgment of conviction is reversed and the case remanded for a
new trial.
1

____________________

1
In light of our holding, we express no opinion as to appellant's remaining contentions. However, we note
that, in regard to appellant's status as an habitual criminal, appellant's former conviction number five may not
stand; and offense number four includes more than one felony conviction.
____________
104 Nev. 725, 725 (1988) Rosner v. Whittlesea Blue Cab Co.
MURRAY ROSNER, Appellant, v. WHITTLESEA BLUE CAB COMPANY,
WHITTLESEA BLUE CAB and JIM BELL, Respondents.
No. 17486
December 21, 1988 766 P.2d 888
Appeal from order granting dismissal for lack of subject matter jurisdiction. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Employee brought action against employer for breach of promises allegedly made during
unionization election. The district court granted employer's motion to dismiss for lack of
subject matter jurisdiction, and employee appealed. The Supreme Court held that action was
not within exclusive jurisdiction of National Labor Relations Board for unfair labor practices.
Reversed and remanded.
Richard Segerblom and Denton & Denton, Las Vegas, for Appellant.
Hilbrecht & Associates, Las Vegas, for Respondents.
Labor Relations; States.
Action by employee against employer for breach of promises allegedly made during unionization
election, which had been honored by employer for nearly five years, could be heard by state court, and was
not preempted by exclusive jurisdiction of National Labor Relations Board over unfair labor practices, as
Board would have analyzed promises or guarantees made by employer to determine whether they had
impact, as unfair labor practice, on non-union employees who were contemplating unionization during
election, rather than adjudicating breach of contract claim which did not stem from collective bargaining
agreement with union. National Labor Relations Act, 8, as amended, 29 U.S.C.A. 158.
104 Nev. 725, 726 (1988) Rosner v. Whittlesea Blue Cab Co.
OPINION
Per Curiam:
The single issue of this appeal is whether appellant Rosner's action was preempted by the
National Labor Relations Act. We hold that it was not and reverse.
This action has its roots in a 1980 union organizational campaign, in which the National
Maritime Union attempted to unionize employees of respondent Whittlesea Blue Cab
Company. The Union's efforts were unsuccessful, allegedly due in part to promises and
guarantees made by Whittlesea to its drivers during the campaign period.
In 1985, Whittlesea allegedly began breaching the promises made during the 1980
unionization election by diminishing fringe benefits and violating low book standards and
promises regarding the operation of air conditioners. Rosner sued, seeking monetary,
injunctive and declaratory relief for breach of contract. Whittlesea moved to dismiss for lack
of subject matter jurisdiction, asserting that the action was preempted by federal law because
making promises during unionization elections is an unfair labor practice within the exclusive
jurisdiction of the National Labor Relations Board. The lower court granted the motion and
this appeal followed.
We are asked to determine whether an action for the breach of certain promises or
guarantees, allegedly made and honored by Whittlesea for nearly five years, may be heard in a
Nevada state court.
The National Labor Relations Act has set forth a strong policy of precluding actions in
state courts over matters which are within its purview. In San Diego Building Trades Council
v. Garmon, 359 U.S. 236 (1959), the Supreme Court set forth general guidelines for the
permissible extent of state regulation of activity touching upon labor-management relations.
1

Over the years, the United States Supreme Court has established exceptions to the rule of
NLRA preemption and has allowed many state law causes of action which are related to
the unfair labor practices provision in 29 U.S.C. 15S {19S2).
____________________

1
The Court stated:
When it is clear or may fairly be assumed that the activities which a state purports to regulate are
protected by 7 of the National Labor Relations Act, or constitute an unfair labor practice under 8, due
regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to
regulate conduct so plainly within the central aim of federal regulation involves too great a danger of
conflict between power asserted by Congress and requirements imposed by state law.
Id. at 244.
104 Nev. 725, 727 (1988) Rosner v. Whittlesea Blue Cab Co.
allowed many state law causes of action which are related to the unfair labor practices
provision in 29 U.S.C. 158 (1982). In Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180
(1978), the Court enunciated two important factors to supplement the Garmon test:
First, there existed a significant state interest in protecting the citizen from the
challenged conduct. Second, although the challenged conduct occurred in the course of
a labor dispute and an unfair labor practice charge could have been filed, the exercise of
state jurisdiction over the tort claim entailed little risk of interference with the
regulatory jurisdiction of the Labor Board. Although the arguable federal violation and
the state tort arose in the same factual setting, the respective controversies presented to
the state and federal forums would not have been the same.
The critical inquiry, therefore, is not whether the State is enforcing a law relating
specifically to labor relations or one of general application but whether the controversy
presented to the state court is identical to . . . or different from . . . that which could
have been, but was not, presented to the Labor Board. . . .
Id. at 196-97. The United States Supreme Court has allowed state tort law causes of action in
many areas.
2

Recently, in Belknap, Inc. v. Hale, 463 U.S. 491 (1983), the Court determined that state
law causes of action for breach of contract and misrepresentation were not preempted by the
NLRA. In Belknap, an employer faced with a strike advertised for, and hired, permanent
replacements for his striking employees. The employer required each hiree to sign a statement
acknowledging employment as a regular, full-time, permanent replacement. Moreover, the
employer declared that the new employees would continue as permanent replacements as long
as they conducted themselves in accordance with the employer's policies and practices.
Ultimately, however, these workers were laid off in favor of returning strikers as part of a
settlement of an unfair labor practice complaint issued against the employer for granting a
unilateral wage increase to union members who stayed on the job during the strike.
____________________

2
The following United States Supreme Court cases outline state law causes of action which have been
allowed, despite preemption: Sears, Roebuck, 436 U.S. at 180 (trespass); Farmer v. Carpenters, 430 U.S. 290
(1977) (intentional infliction of emotional stress); Linn v. Plant Guard Workers, 383 U.S. 53 (1966)
(defamation); Automobile Workers v. Russell, 356 U.S. 634 (1958) (obstruction of access to property); United
Workers v. Laburnum Corp., 347 U.S. 656 (1954) (state cause of action for laws prohibiting violence).
104 Nev. 725, 728 (1988) Rosner v. Whittlesea Blue Cab Co.
on the job during the strike. The Supreme Court held that the critical inquiry was whether the
controversy presented to the state court was identical to that which could be presented to the
National Labor Relations Board. In Belknap, the controversies could not fairly be called
identical because the unfair labor practice issues before the National Labor Relations Board
related to rights of the strikers, which had little in common with misrepresentations made to
the replacements or the employer's liability in damages to them for breach of contract. The
Court noted that the state had a substantial interest in protecting its citizens from
misrepresentation and breach of contract.
We conclude that Belknap is applicable to the instant case. The National Labor Relations
Board would have analyzed the promises or guarantees Whittlesea made to its employees to
determine whether they had an impact, as an unfair labor practice, on the non-union
employees who were contemplating unionization during an election. The Board would not
have been called upon to adjudicate a breach of contract claim which did not stem from a
collective bargaining agreement with a union. It thus seems clear that the controversy which
could have come before the Board is significantly different than the breaching of allegedly
unfair promises after five years of reliance. A state court action will not impair the board's
jurisdiction.
3

We conclude that this is a significantly different cause of action than that which could
have been brought before the National Labor Relations Board; that the breach of a contract
not involving collective bargaining is a matter of peripheral concern to the Board; and that, in
reversing the decision of the lower court, we merely recognize Nevada's substantial interest in
protecting its citizens from the breach of employment contracts.
Accordingly, we reverse the decision of the lower court and remand for further
proceedings. We, of course, intend no inference concerning the validity of appellant's claims.
____________________

3
It must also be noted that the limitations period to bring a matter before the National Labor Relations Board
is six months from time of the complaint of activity. 29 U.S.C. 160(b) (1982). In the instant case, any action
before the Board is time-barred. If subject matter jurisdiction is not found in the instant case, plaintiffs will have
no recourse.
____________
104 Nev. 729, 729 (1988) Doyle v. State
MICHAEL J. DOYLE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17848
December 21, 1988 765 P.2d 1156
Appeal from conviction of first degree murder with use of a deadly weapon and from the
trial court's denial of appellant's motion for a new trial. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
Defendant was convicted after jury trial in the district court of first degree murder, and
defendant appealed. The Supreme Court held that: (1) trial court's refusal to grant continuance
in face of State's disclosure of witness only three days before trial did not deny defendant
assistance of counsel; (2) prosecutor's remark to defense witness, alluding to witness'
upcoming trial, and letting witness know prosecutor intended to achieve form of vengeance
then by convicting witness, although uncalled for and improper, was harmless; and (3)
prosecutor's query during closing argument, asking jury whether it could imagine agony of
having knife plunged into body seventy times, was not so prejudicial as to require new trial.
Affirmed.
William H. Smith, Las Vegas, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Melvyn T.
Harmon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Trial court's refusal to grant continuance in face of State's disclosure of witness only three days before
trial did not deny defendant assistance of counsel, where trial court ordered State to produce all
information that State possessed regarding witness, and State did not call witness until third day of trial.
U.S.C.A.Const. Amend. 6.
2. Criminal Law.
It is prosecutor's duty to promptly disclose names and addresses of his witnesses.
3. Costs.
Budgetary considerations, while always factor in criminal prosecutions, are not sufficient justification for
denying accused opportunity to gather evidence to confront witnesses against him.
4. Criminal Law.
Prosecutor's remark to defense witness alluding to witness' upcoming trial, and letting witness know
prosecutor intended to achieve form of vengeance then by convicting witness, although uncalled for and
improper, was harmless, where jury did not hear remark, and even had jury heard remark, jury could not
have inferred anything from statement that was prejudicial to defendant.
104 Nev. 729, 730 (1988) Doyle v. State
5. Criminal Law.
Prosecutor's query during closing argument, asking jury whether it could imagine agony of having knife
plunged into body seventy times, was not so prejudicial as to require new trial, where there was no doubt
that killing of victim constituted first degree murder, no serious dispute that killing had been brutal in
extreme, and likelihood that victim had suffered profound pain was obvious, so that passing invitation to
jury to imagine victim's pain was unlikely to have inflamed jury or blind its members to central issue of
whether defendant was killer.
OPINION
Per Curiam:
At approximately 11:15 p.m. on March 21, 1985, the manager of the apartment complex at
2592 Sherwood Street, Las Vegas, discovered the partially clad body of Lois McNally in the
alley behind the complex. McNally, a local prostitute, had suffered over seventy stab wounds
and her body had been dumped in the alley. An autopsy confirmed that death resulted from
the stab wounds.
Fire Department paramedics, who were the first officials to arrive at the scene, discovered
a large black wallet lying next to McNally's body. When police inventoried the wallet's
contents they found a Utah driver's license issued to Michael J. Doyle and a Nevada
Employment Security card that listed Doyle's Las Vegas Address. Police detectives contacted
Doyle at his residence and obtained permission to search Doyle's vehicle. A search of the
vehicle at the police crime lab disclosed a substantial quantity of type B blood, the same
blood type as the victim's. In addition, the vehicle search disclosed a motel receipt in
McNally's name and a yellow metal necklace that was later identified as belonging to
McNally. Thereafter, Robert Leonard, the homicide detective investigating the crime, placed
Doyle under arrest for murder with use of a deadly weapon.
Doyle's first two trials ended in mistrials when the juries were unable to reach a verdict.
Upon his third trial the jury convicted Doyle of first degree murder with use of a deadly
weapon. In a separate penalty hearing the jury imposed a sentence of life with the possibility
of parole.
Doyle's principal claims of error involve: (1) the trial court's denial of his request for a
continuance in order to obtain evidence with which to impeach an informant; and (2) alleged
acts of prosecutorial misconduct.
The Trial Court's Denial of Doyle's
Motion for a Continuance
On September 11, 1986, four days prior to Doyle's third trial, the State moved to amend
the information and add the name of Albert Farrar, an informant incarcerated with Doyle.
104 Nev. 729, 731 (1988) Doyle v. State
Albert Farrar, an informant incarcerated with Doyle. It is undisputed that the State had been
aware of the testimony that Farrar would give since early August. The trial court heard and
granted the State's motion on September 12. At that time, Doyle moved for a continuance in
order to obtain evidence with which to impeach Farrar. The trial court denied Doyle's motion,
but ordered the State to provide Doyle with any information it possessed regarding Farrar.
Farrar was not called as a witness until September 17ththe third day of trial.
[Headnote 1]
Doyle maintains that the trial court in refusing to grant a continuance in the face of the
State's last minute disclosure of its witness denied him assistance of counsel. We disagree.
It is well settled that [t]he granting of a continuance is within the sound discretion of the
[trial] court. Dixon v. State, 94 Nev. 662, 665, 548 P.2d 693, 694 (1978) (citations omitted).
Absent the showing of a clear abuse of discretion, the decision of the trial court will not be
disturbed. Walker v. State, 89 Nev. 281, 510 P.2d 1365 (1973).
In Walker we addressed a similar situation. There, defense counsel learned on a Friday that
the State intended to call a rebuttal witness the following Monday. The defense sought a
continuance in order to obtain impeachment witnesses; however, the trial court denied the
request. In considering whether the trial court had abused its discretion, we noted:
It has been held that it is not an abuse of discretion to deny a continuance where the
testimony sought is to be used for impeachment purposes.
Id. at 284, 510 P.2d at 1367 (citing State v. Cotton, 443 P.2d 404 (Ariz. 1968)). After
indicating that the defense had a full weekend to find impeachment evidence, we held that
the trial court had not abused its discretion. Id.
In the instant case, the trial court granted the prosecution's motion to amend the
information and add the name of Farrar three days prior to trial. The trial court ordered the
State to produce all information that the State possessed regarding Farrar, and the State did
not call Farrar as a witness until the third day of trial. Moreover, Doyle had the benefit of a
court-appointed investigator. Under these circumstances, we cannot say as a matter of law
that six days was an inadequate time in which to gather evidence to impeach the witness.
Our review of the trial record does not establish that the court's ruling denied Doyle
assistance of counsel. The defense on cross-examination brought out Farrar's prior
convictions, his history of being an informer in both the California prison system and in
Nevada, as well as his reputation of being a disciplinary problem at the Clark County
Detention Center.
104 Nev. 729, 732 (1988) Doyle v. State
being an informer in both the California prison system and in Nevada, as well as his
reputation of being a disciplinary problem at the Clark County Detention Center. The defense
inquired into the circumstances surrounding Farrar's contacts with Doyle and with the
prosecutor's office. The defense also questioned Farrar about past instances where Farrar had
lied to authorities and about a report that characterized Farrar as approaching the
development of a sociopathic personality, having a limited ego development, and being
motivated solely by his own needs and desires.
Still, while we conclude that the trial court, in refusing to grant a continuance, neither
abused its discretion nor denied Doyle assistance of counsel, we do not condone the
prosecution's failure to reveal its witness until shortly before trial. Prosecutor Harmon had
known of Farrar since early August; yet, he did not disclose the witness until September 11.
During oral argument Mr. Harmon attempted to justify his non-disclosure by stating that
Farrar, fearing for his safety while at the Clark County Detention Center, had conditioned his
testimony for the State upon his California parole being reinstated. When questioned whether
he could have relocated Farrar to another detention facility, thus ensuring Farrar's safety, Mr.
Harmon admitted that relocation would have been possible, but claimed that budgetary
considerations influenced his decision against it.
[Headnotes 2, 3]
It is the prosecutor's duty to promptly disclose the names and addresses of his witnesses.
Owens v. State, 96 Nev. 880, 882, 620 P.2d 1236, 1238 (1980) (citing NRS 173.045(2)).
While Mr. Harmon argued that Farrar was not a prosecution witness until the terms upon
which he had conditioned his cooperation had been satisfied,
1
we believe that Mr. Harmon
should have informed the defense of Farrar's potential testimony upon learning of it. If
fulfilling his obligation to the defense, while at the same time ensuring Farrar's safety,
required Mr. Harmon to relocate Farrar at additional expense, the State should have incurred
the costs. Budgetary considerations, while always a factor in criminal prosecutions, are not a
sufficient justification for denying an accused the opportunity to gather evidence in order to
confront witnesses against him.
____________________

1
Our conclusion that the trial court did not abuse its discretion in denying Doyle's motion for a continuance
obviates the necessity of our resolving this issue and we decline to express our opinion on it.
104 Nev. 729, 733 (1988) Doyle v. State
Prosecutorial Misconduct
[Headnote 4]
Doyle contends that Mr. Harmon demeaned a defense surrebuttal witness, Richard
Melborn, by threatening reprisal at Melborn's upcoming trial. During cross-examination, Mr.
Harmon asked why Melborn was incarcerated. The defense objected and the court sustained
the objection. After a difficult and heated cross-examination, the defense counsel heard Mr.
Harmon remark November 17 as Melborn was exiting. Doyle contends, and Mr. Harmon in
effect has admitted, that by this cryptic comment Harmon was alluding to Melborn's coming
trial, and letting Melborn know Harmon intended to achieve a form of vengeance then by
convicting Melborn. Out of the presence of the jury, the defense moved for a mistrial; the
court denied the motion.
The remark was indeed uncalled for and improper. During oral argument, Mr. Harmon
conceded that his remark was exceedingly unprofessional. Circumstances suggest, however,
that the jury did not hear the remark: the remark was apparently inaudible to the court reporter
as it does not appear in the record, nor does it appear that the court heard it.
2
Even if the jury
heard the remark, we do not believe that a reasonable juror could have inferred anything from
the statement that was prejudicial to this appellant. We conclude, therefore, that the trial court
did not err in denying Doyle's motion for a mistrial.
____________________

2
Out of the presence of the jury, the following exchange occurred:
MR. SMITH: Your Honor, before we begin to settle instructions, I must make a motion which, quite
frankly, I regret to make.
But as the witness was leaving the courtroom, perhaps out of consternation at his testimony, Mr. Harmon
told him in a clearly audible voice that I heard, November 17.
I think, and I can't say whether the jury heard it or not, but that in light of the question which was clearly
objectionable and was sustained, Why are you a guest of the Clark County Detention Center? could
certainly suggest to the members of this jury that this man is a guest in the Clark County Detention Center
for something far more serious than grand larceny auto.
I think it's been clearly established that we have a major violator case here and that the suggestion is that,
unfortunately, that the prosecutor intends to rectify this situation on November 17. I think the suggestion
is that it's a trial date.
I don't attribute a particular malice, certainly don't, from the prosecutor as far as infecting this trial, but
nevertheless, the statement was made
THE COURT: The statement was the recital of a date?
MR. SMITH: Right. November 17. And I think the suggestion is that that's a date when the prosecutor is
going to get even with the witness. (Emphasis supplied.)
104 Nev. 729, 734 (1988) Doyle v. State
[Headnote 5]
Doyle also contends that Mr. Harmon improperly asked the jury to place itself in the
position of the victim, and that the trial court erred in overruling the defense's objection to the
statement. During closing arguments, Mr. Harmon addressed the jury as follows:
Just to my left there is a man who has plunged a knife many, many times into another
human being. When I get my finger scratched it hurts. When I am shaving in the
morning and cut myself or nick myself a little bit, it hurts. Can you imagine the agony
of having a knife plunged into the body that many times? (Emphasis supplied.)
We have previously observed that comments asking jurors to place themselves in the
position of the victim are exceedingly improper in and of themselves. . . . Jacobs v. State,
101 Nev. 356, 359, 705 P.2d 130, 132 (1985) (quoting McGuire v. State, 100 Nev. 153, 158,
677 P.2d 1060, 1064 (1984)). Still, although Mr. Harmon's statement was perilously close to
one we condemned in Yates v. State, 103 Nev. 200, 734 P.2d 1252 (1987),
3
we do not in this
case feel justified in determining that his argument was so prejudicial as to require a new
trial. There can be little doubt now, and none was raised at trial, that the killing of McNally
constituted first degree murder. There was no serious dispute that the killing had been brutal
in the extreme. The likelihood that the victim had suffered profound pain was obvious. The
prosecutor's remarks about his experiences while shaving hardly conjured up startling visions
of agony, and his passing invitation for the jury to imagine the victim's pain is unlikely to
have so inflamed the jury as to blind its members to the central issue of the case, i.e., whether
or not the defendant was the killer.
We have carefully reviewed Doyle's remaining assignments of error and conclude that they
are without merit. The judgment of conviction is affirmed.
____________________

3
At oral argument, Mr. Harmon defended his statement as being pure argument relating to the heinous nature
of the offense. Mr. Harmon maintained that although Doyle defended on the grounds that he was framed and
never disputed that McNally's murder was murder in the first degree, it was the prosecution's task, nonetheless,
to prove each element of the offense charged. Mr. Harmon's argument is not totally unpersuasive. See State v.
Green, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965) (prosecutor may comment on the testimony, ask jury to
draw inferences from the evidence, and state fully his views as to what evidence shows).
____________
104 Nev. 735, 735 (1988) Wood v. State Farm Mut. Ins.
GERALD WOOD and VIRGINIA WOOD, Appellants, v. STATE FARM MUTUAL
INSURANCE COMPANY, Respondent.
No. 18522
December 27, 1988 766 P.2d 269
Appeal from a grant of partial summary judgment. Second Judicial District Court, Washoe
County; Robin Anne Wright, Judge.
Insureds under automobile liability policies brought suit claiming that insurer failed to pay
limits under stacking of all policies. The district court granted summary judgment to insurer.
On appeal, the Supreme Court held that insurer's failure to have antistacking language in
policies did not allow stacking since it was inappropriate in automobile liability policy
situations.
Affirmed.
Joseph P. Reynolds, Reno, for Appellants.
Georgeson, McQuaid, Thompson & Angaran, Reno, for Respondent.
Insurance.
Antistacking language in automobile liability policies did not need to be prominently displayed in clear
language as liability coverage could not be stacked. NRS 687B.145, subd. 1.
OPINION
Per Curiam:
On August 1, 1981, Mr. Paul Raya caused an automobile accident in which appellants
were injured. Raya held a State Farm automobile insurance policy which provided third-party
liability coverage on the car he was driving at the time of the accident. State Farm paid
appellants the $100,000 coverage limit under that policy.
Raya also owned two other vehicles, each of which was covered by a separate State Farm
third-party liability policy. Appellants brought this action, claiming, among other things, that
State Farm should have paid them the liability coverage limits under all three of Raya's
automobile insurance policies because the policies' antistacking provisions were not in clear
language and prominently displayed as required by NRS 687B.145(1).
1

____________________

1
NRS 687B.145(1) provides:
Any policy of insurance or endorsement providing coverage under the provisions of NRS 690B.020
or other policy of casualty insurance The district court correctly determined that NRS
6S7B.145{1) does not apply to third-party liability coverage and granted State
Farm's motion for summary judgment on that issue.
104 Nev. 735, 736 (1988) Wood v. State Farm Mut. Ins.
The district court correctly determined that NRS 687B.145(1) does not apply to third-party
liability coverage and granted State Farm's motion for summary judgment on that issue.
This court has determined that stacking of . . . automobile coverage for bodily injury
liability is inappropriate. Rando v. Calif. St. Auto. Ass'n, 100 Nev. 310, 313, 684 P.2d 501,
503 (1984). Because automobile liability coverage is not stackable, a prominent and clear
policy anti-stacking provision pursuant to NRS 687B.145(1) would serve no purpose. The
statute can have meaning only when applied to insurance coverage, such as uninsured
motorist coverage, which is otherwise stackable. See Neumann v. Standard Fire Ins., 101
Nev. 206, 699 P.2d 101 (1985). Accordingly, we affirm the district court's grant of partial
summary judgment.
Young, A. C.J., Steffen, Springer and Mowbray, JJ., and Zenoff, Sr. J.,
2
concur.
____________________
may provide that if the insured has coverage available to him under more than one policy or provision of
coverage, any recovery or benefits may equal but not exceed the higher of the applicable limits of the
respective coverages, and the recovery or benefits must be prorated between the applicable coverages in
the proportion that their respective limits bear to the aggregate of their limits. Any provision which limits
benefits pursuant to this section must be in clear language and be prominently displayed in the policy,
binder or endorsement. Any limiting provision is void if the named insured has purchased separate
coverage on the same risk and has paid a premium calculated for full reimbursement under that coverage.

2
The Honorable David Zenoff, Senior Justice, participated in this appeal in the place of Chief Justice E. M.
Gunderson pursuant to this court's general order of assignment filed September 14, 1988.
____________
104 Nev. 736, 736 (1988) Keys v. State
JIMMY HARRELL KEYS, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 17923
December 29, 1988 766 P.2d 270
Appeal from judgment of conviction upon jury verdict for second degree murder with use
of a deadly weapon, attempted murder with use of a deadly weapon, and aiming a firearm.
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Defendant was convicted in the district court of second degree murder with use of deadly
weapon, attempted murder with use of deadly weapon, and aiming a firearm.
104 Nev. 736, 737 (1988) Keys v. State
deadly weapon, and aiming a firearm. Defendant appealed. The Supreme Court, Springer, J.,
held that: (1) there was sufficient evidence of malice to support murder conviction, and (2) it
was reversible error for trial court to refuse to instruct jury that specific intent to kill was
essential element of crime of attempted murder.
Affirmed in part; reversed in part.
Morgan D. Harris, Public Defender, Victor John Austin, Deputy Public Defender, Clark
County, for Appellant.
Brian McKay, Attorney General, Carson City; Rex Bell, District Attorney, Alan J. Buttell,
Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Malice required to support murder conviction can be present in the absence of express intent to kill and,
as applied to murder, does not necessarily import ill will toward victim, but signifies general malignant
recklessness of others' lives and safety or disregard of social duty. NRS 200.020.
2. Homicide.
There was sufficient evidence of malice to support conviction for second degree murder with use of
deadly weapon; defendant used handgun in deadly and dangerous manner, two eyewitnesses to shooting
testified that killing did not appear to them to be accidental, and another witness testified that defendant
threatened to kill victim before he actually shot him. NRS 200.020.
3. Homicide.
It was reversible error for trial court to refuse to instruct jury that specific intent to kill was essential
element of crime of attempted murder, and error was compounded by district court's instructions to jury on
implied malice.
4. Homicide.
The mens rea encompassed by implied malice has no application in prosecution in which specific intent
to kill is required element of accused offense.
5. Homicide.
Intent to commit murder means intent to kill someone with malice aforethought. NRS 193.330,
200.010, 200.020.
6. Homicide.
Proving express malice means proving deliberate intention to kill; proving implied malice means proving
only commission of wrongful acts from which, absent any proof of actual intent to harm, the archaic but
essential abandoned and malignant heart can be inferred in law.
7. Homicide.
Attempted murder can be committed only when accused's acts are accompanied by express malice,
malice in fact.
8. Homicide.
Attempted murder is performance of act or acts which tend, but fail, to kill a human being, when the acts
are done with express malice, namely, with deliberate intention unlawfully to kill; there is
no need for prosecution to prove any additional elements such as premeditation and
deliberation.
104 Nev. 736, 738 (1988) Keys v. State
namely, with deliberate intention unlawfully to kill; there is no need for prosecution to prove any additional
elements such as premeditation and deliberation.
9. Homicide.
There are no degrees of attempted murder; overruling Wheby v. Warden, 95 Nev. 567, 598 P.2d 1152.
OPINION
By the Court, Springer, J.:
Appellant Keys appeals from three convictions, second degree murder with the use of a
deadly weapon, attempted murder with the use of a deadly weapon and aiming a firearm. The
murder conviction and conviction for aiming a firearm are affirmed; the attempted murder
conviction is reversed.
Keys shot a man, Coleman, in the chest and killed him. While fleeing the scene of the
murder Keys encountered another man, Jones, whom he assaulted with the murder weapon.
Keys pointed his handgun at Jones's torso and ordered Jones to drive him away. When Jones
refused, Keys pulled the trigger twice, but the gun failed to fire, and Jones escaped.
Second Degree Murder
Keys contends that there is insufficient evidence of malice to support a murder conviction.
This is a clear case of murder with implied malice. Malice shall be implied when no
considerable provocation appears, or when all the circumstances of the killing show an
abandoned and malignant heart. NRS 200.020. Malice aforethought may be inferred from
the intentional use of a deadly weapon in a deadly and dangerous manner. Moser v. State, 91
Nev. 809, 812, 544 P.2d 424, 426 (1975).
[Headnotes 1, 2]
Malice can be present in the absence of an express intent to kill and as applied to murder
does not necessarily import ill will toward the victim, but signifies general malignant
recklessness of others' lives and safety or disregard of social duty. Thedford v. Sheriff, 86
Nev. 741, 744, 476 P.2d 25, 27 (1970). The case at hand is a classic case of implied malice in
which the defendant's actions show malice in law, that is a malignant disregard and
recklessness concerning the life and safety of another. Ample evidence was adduced at trial
that Keys used the handgun in a deadly and dangerous manner. Moreover, two eyewitnesses
to the shooting, Michael Moore and Bill Armstrong, testified that the killing did not appear to
them to be accidental, and Michelle Coleman testified that Keys threatened to kill Ronald
Coleman before Keys actually shot him.
104 Nev. 736, 739 (1988) Keys v. State
Coleman testified that Keys threatened to kill Ronald Coleman before Keys actually shot him.
The second degree murder conviction is unassailable and must stand.
Attempted Murder
[Headnotes 3, 4]
Keys requested that the jury be instructed that one could not be convicted of attempted
murder unless it were proven that he had the intent specifically to kill another person. It
was error for the trial court to refuse to instruct the jury that the specific intent to kill is an
essential element of the crime of attempted murder. See Ramos v. State, 95 Nev. 251, 592
P.2d 950 (1979) (reversible error to instruct jury that defendant can be found guilty of
attempted murder absent proof of a specific intent to kill). The error was compounded by the
district court's instructions to the jury on implied malice. Implied malice is malice inferred in
law from the defendant's conduct rather than by proof of an actual intention to kill. The mens
rea encompassed by implied malice has no application in a prosecution in which a specific
intent to kill is a required element of the accused offense. An instruction on implied malice in
relation to the crime of attempted murder is misleading to a jury.
The question of specific intent to kill as an element of attempted murder and an associated
question relating to whether attempted murder may be divided into degrees, attempted murder
in the first degree or second degree, present issues deserving of some explanation and
discussion.
Courts in other jurisdictions have noted a certain degree of confusion on whether specific
intent is an essential element of attempted murder. For example, in the case of People v.
Kraft, 478 N.E.2d 1154, 1157 (Ill.App. 1 Dist. 1985), the court commented:
Judging from the number of decisions addressing this issue, the proper jury
instructions for attempted murder has served as a continuing source of confusion and
uncertainty among members of the bar. All authorities agree that the crime of attempt is
a specific intent crime and an instruction must make it clear that to convict for
attempted murder nothing less than a criminal intent to kill must be shown.
(Citations omitted.)
In the hope of allaying any confusion and uncertainty that might attend the subject of
attempted murder in this jurisdiction we review and examine this area of the criminal law.
[Headnote 5]
An attempt to commit a crime is punishable under Nevada law.
104 Nev. 736, 740 (1988) Keys v. State
NRS 193.330 provides that an act done with intent to commit a crime, and tending but
failing to accomplish it, is an attempt to commit that crime. NRS 193.330. Keys is charged
with attempted murder, that is, an act done with the intent to commit murder, such act tending
but failing to accomplish the crime of murder. Intent to commit murder means the intent to
kill someone with malice aforethought. Murder, by definition, is the unlawful killing of a
human being, with malice aforethought, either express or implied. NRS 200.010.
[Headnote 6]
The mens rea requirement denoted by the term express malice is different from that of
implied malice. Express malice, called malice in fact, is the deliberate intention to kill;
implied malice, called malice in law, does not relate to a deliberate, intentional killing but is
rather a mens rea inferred in law from the circumstances of the killing. NRS 200.020.
Proving express malice means proving a deliberate intention to kill; while proving implied
malice means proving only the commission of wrongful acts from which, absent any proof of
an actual intent to harm, the archaic but essential abandoned and malignant heart can be
inferred in law.
[Headnote 7]
Attempted murder can be committed only when the accused's act are accompanied by
express malice, malice in fact. One cannot attempt to kill another with implied malice
because there is no such criminal offense as an attempt to achieve an unintended result.'
Ramos, 95 Nev. at 253, 592 P.2d at 951 (quoting People v. Viser, 343 N.E.2d 903, 910 (Ill.
1975)). An attempt, by nature, is a failure to accomplish what one intended to do. Attempt
means to try; it means an effort to bring about a desired result. Thus one cannot attempt to be
negligent or attempt to have the general malignant recklessness contemplated by the legal
concept, implied malice. One cannot be guilty of attempted murder by implied malice
because implied malice does not encompass the essential specific intent to kill.
[Headnotes 8, 9]
An attempt to kill with express malice is, on the other hand, completely consistent with the
specific intent requirement of the crime of attempt. Express malice is the deliberate intention
unlawfully to kill a human. NRS 200.020(1). Attempted murder, then, is the attempt to kill a
person with express malice, or more completely defined: Attempted murder is the
performance of an act or acts which tend, but fail, to kill a human being, when such acts are
done with express malice, namely, with the deliberate intention unlawfully to kill. This is all
there is to it. There is no need for the prosecution to prove any additional elements, such
as, say, premeditation and deliberation.
104 Nev. 736, 741 (1988) Keys v. State
no need for the prosecution to prove any additional elements, such as, say, premeditation and
deliberation. There are no degrees of attempted murder. The penalty for attempted murder is
imprisonment for not less than one year nor more than twenty years. NRS 193.330. Proof of
added elements adds nothing to the offense, nothing to the penalty. Speaking of crimes of
attempted murder in the first degree or attempted murder in the second degree makes no
sense since the penalty remains the same, and the added statutory elements comprising first
degree murder are simply redundant. As properly noted in Graves v. Young, 82 Nev. 433, 420
P.2d 618 (1966): The crime attempt to commit murder is made a crime by statute. The
words first degree' are mere surplusage. State v. Roderigas, 7 Nev. 328 (1872).
1
Graves,
82 Nev. at 438, 420 P.2d at 620.
Keys asked for an instruction telling the jury that to prove attempted murder the state must
prove the intent specifically to kill another person. This instruction was, as stated,
erroneously refused. Further, the given instruction on implied malice, particularly as it relates
to unintentional reckless disregard of consequences and social duty, although applicable to
the murder charge, was necessarily misleading to the jury when it was considering the
attempted murder charge. As stated in the Kraft case, the court's instructions must make it
clear that to convict for attempted murder nothing less than a criminal intent to kill must be
shown.' Kraft, 478 N.E.2d at 1157. Given the trial court's refusal of Keys's proffered
instruction on specific intent and the misleading effect of the implied malice instructions
given by the trial court, it was certainly not made clear to the jury that nothing less than a
specific criminal intent to kill must be shown in order to establish the crime of attempted
murder.
____________________

1
We explain this in detail because the court and counsel speak in the record of attempted murder in the first
and second degrees. We hold in this case that there is no such thing as attempted murder in the first or second
degree. [A]ttempted murder is a generic crime, the sole mental element of which is a purpose to cause the
victim's death. There [is], therefore, no need to prove premeditation and deliberation. . . . State v. Brown, 517
A.2d 831, 837 (N.H. 1986). Although this court has never expressly ruled on the question of whether there can
be degrees of attempted murder, it has occasionally written acceptingly of attempted first and second degree
murder; thus, the reference to these crimes appearing in the record of this case is quite understandable. In Graves
v. State, 82 Nev. 137, 413 P.2d 503 (1966), later appealed, 84 Nev. 262, 439 P.2d 476 (1968), cert. denied, 393
U.S. 919 (1968), involving the same Mr. Graves who was appellant in Graves v. Young, cited above, this court
apparently accepted the concept of a conviction of attempted murder in the first degree. See also Septer v.
Warden, 91 Nev. 84, 530 P.2d 1390 (1975). In Wheby v. Warden, 95 Nev. 567, 598 P.2d 1152 (1979), this
court wrote about a conviction for attempted murder in the second degree. No wonder, under these
circumstances, that a degree of confusion persists on this point. We trust that, now, for the reasons expressed in
the body of this opinion, the confusion will be set to rest. There are no degrees of attempted murder. To the
extent that Wheby holds to the contrary, such holding is overruled.
104 Nev. 736, 742 (1988) Keys v. State
and the misleading effect of the implied malice instructions given by the trial court, it was
certainly not made clear to the jury that nothing less than a specific criminal intent to kill
must be shown in order to establish the crime of attempted murder. Therefore, and under the
direct authority of Ramos, we must reverse the attempted murder conviction.
Keys stands convicted of second degree murder with use of a deadly weapon and of
aiming a firearm, for which crimes he has been sentenced to two consecutive twenty-five-year
terms in the Nevada State Prison plus a concurrent six months in the Clark County Jail. If
additional penalties are to be sought by the state for the attempted murder of Jones, Keys
must be retried by a jury properly instructed on the law of attempted murder.
Gunderson, C. J., Steffen, Young, and Mowbray, JJ., concur.
____________
104 Nev. 742, 742 (1988) Ransier v. SIIS
JAMES R. RANSIER, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM, an
Agency of the State of Nevada, and FREHNER CONSTRUCTION COMPANY, a Nevada
Corporation, Respondents.
No. 18003
December 29, 1988 766 P.2d 274
Appeal from judgment. Eighth Judicial District Court, Clark County; Earle W. White, Jr.,
Judge.
Worker filed a claim with the State Industrial Insurance System (SIIS) for a knee injury.
The SIIS appeals officer reduced worker's award because of a previous knee injury, and
worker appealed. The district court affirmed, and worker appealed. The Supreme Court,
Mowbray, J., held that: (1) there was sufficient evidence to support the decision to apportion
worker's medical disability; (2) the rating physicians properly used the most recent AMA
guide; and (3) SIIS could not recoup the portion of the original award to which worker was
held not entitled to on appeal.
Affirmed in part; reversed in part.
Barbara Gruenewald, Industrial Claimants Attorney, Carson City, and Jeffrey A. Feldman,
Deputy, Las Vegas, for Appellant.
Pamela Bugge, General Counsel, Carson City, Virginia L. Hunt, Associate General
Counsel, Las Vegas; and John J.
104 Nev. 742, 743 (1988) Ransier v. SIIS
McCune, Michael B. Springer and Timothy E. Rowe, Reno, for Respondents.
1. Workers' Compensation.
When worker's post-injury impairment is due to both immediate injury and pre-existing injury,
compensation may only be paid for that portion of impairment reasonably attributable to current injury.
2. Workers' Compensation.
Apportionment of worker's medical disability, in connection with claim for benefits due to knee injury,
was not arbitrary and capricious, despite fact that no documents existed concerning worker's prior injury;
Sate Industrial Insurance System physicians found that subsequent injury could not have caused
degenerative osteoarthritis on scale suffered by worker.
3. Workers' Compensation.
For purposes of apportionment of workers' compensation benefits between two accidents, rating
physicians did not improperly use most recently published AMA guide, despite worker's argument that
previous edition in effect when he was injured should have been used. NRS 616.605, subd. 2, 616.625.
4. Workers' Compensation.
State Industrial Insurance System cannot recoup contested workers' compensation benefits that were paid,
but thereafter ruled unjustified on appeal.
OPINION
By the Court, Mowbray, J.:
Appellant James R. Ransier filed a claim with the State Industrial Insurance System for a
knee injury. The appeals officer reduced Ransier's award because of a previous knee injury.
The district court affirmed that decision.
Ransier contends the district court should not have apportioned his award between the two
injuries. As substantial evidence supports the apportionment, we affirm that decision. Ransier
also contends that SIIS may not seek recoupment of benefits paid him that were later found
unwarranted on appeal. We agree and reverse the district court judgment against Ransier of
the amount of funds overpaid to him by SIIS.
Ransier, a carpenter employed by respondent Frehner Construction Company, injured his
left knee at work in 1984. Surgery had been performed on the same knee in 1960 for the
removal of cartilage. No documents concerning the 1960 injury were locatable. However,
Ransier's knee developed osteoarthritis as a result of the first operation and the body's aging
process.
Ransier's knee failed to respond to treatment after the 1984 injury and the knee joint was
then replaced. Ransier's two SIIS evaluators apportioned his benefits between the two
accidents because Ransier's 19S4 injury could not have caused osteoarthritis of the
advanced magnitude present in the knee in 19S4.
104 Nev. 742, 744 (1988) Ransier v. SIIS
because Ransier's 1984 injury could not have caused osteoarthritis of the advanced magnitude
present in the knee in 1984. The physicians also found that although Ransier had no pre-1984
medical records, Ransier's condition clearly reflected the damage attributable to each injury.
The hearing officer, however, held that insufficient evidence supported the apportionment
and awarded Ransier a full impairment. The appeals officer reversed that decision and
reinstated the doctors' decisions. The appeals officer found substantial evidence that Ransier
experienced advanced osteoarthritis before the 1984 injury and was entitled only to a fifty
percent impairment under the law. The district court affirmed that decision. Ransier appeals
that award.
I.
[Headnote 1]
Ransier contends that insufficient evidence supports the appeals officer's decision to
apportion Ransier's medical disability. When a worker's post-injury impairment is due to both
the immediate injury and a pre-existing injury, compensation may only be paid for that
portion of the impairment reasonably attributable to the current injury. See Nevada
Administrative Code 616.650(1). NAC 616.650(6) specifies that for pre-existing
conditions, such as degenerative arthritis, apportionment must be supported by
documentation concerning the scope and nature of the impairment which existed before the
industrial injury or the onset of the disease.
1
Physicians shall always explain the
underlying basis of the apportionment as specifically as possible by citing pertinent data in
the medical or other records. NAC 616.650(7). Absent documentation pursuant to NAC
616.650(6) or NAC 616.650(7), the impairment may not be apportioned. NAC 616.650(8).
[Headnote 2]
Although no documents exist concerning Ransier's prior injury, both treating physicians
found Ransier's two injuries to be distinguishable. Ransier's twisted knee in 1984 differed
greatly
____________________

1
Ransier contends that NAC 616.650(6) requires historical documentation from the pre-existing injury before
the current injury can be properly apportioned. In NAC 616.650(6) the clause which existed before the
industrial injury or the onset of the disease refers to the impairment and not the documentation. NAC
616.650(6) does not require historical documentation, only documentation concerning the scope and from his
osteoarthritic degeneration.nature of the impairment, which can come, as here, from examination at the
time of the second injury. We note, however, that the physicians must still specifically explain the underlying
basis of apportionment with reference to medical or other records. See NAC 616.650(7).
104 Nev. 742, 745 (1988) Ransier v. SIIS
from his osteoarthritic degeneration. The two physicians found that the twisted knee could not
have caused degenerative osteoarthritis on the scale suffered by Ransier. The appeals officer
and the district court found competent evidence supporting the physicians' decision to
apportion Ransier's injuries between the 1960 and 1984 accidents. The record demonstrates
that the apportionment of Ransier's award by the appeals officer was not arbitrary and
capricious. See SIIS v. Swinney, 103 Nev. 17, 731 P.2d 359 (1987); Nevada Indus. Comm'n
v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984). We accordingly affirm the apportionment
decision.
[Headnote 3]
Ransier next contends that his rating physicians improperly used the 1984 edition of the
American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA
Guide), rather that a previous edition in effect when he was injured. The latter edition, if
used, would have provided an increased disability. NRS 616.625 provides that [e]xcept as
otherwise provided by specific statute, the amount of compensation and benefits . . . must be
determined as of the date of the accident or injury to the employee. . . . NRS 616.605(2),
however, specifically provides that physicians must use the AMA Guide in the form most
recently published. When Ransier was evaluated in 1985, the 1984 AMA Guide was the
form most recently published. Ransier's physicians properly used the 1984 AMA Guide
when they made their evaluations.
II.
[Headnote 4]
Ransier received a lump sum award after the hearing officer's decision to award a full knee
disability. After Ransier's award was reduced on appeal, SIIS initiated an action to recoup that
portion of the original award to which Ransier was no longer entitled. SIIS obtained a
judgment against Ransier for the $19,655.56 difference. Ransier contends that absent
statutory authority, SIIS cannot recoup contested benefits that were paid, but thereafter ruled
unjustified on appeal.
We held in Weaver v. SIIS, 104 Nev. 305, 756 P.2d 1195 (1988), that:
Chapter 616 of the Nevada Revised Statutes sets forth a comprehensive system for
the compensation of industrial injuries. Because the system is uniquely legislative in
nature, and alters the common law rights and liabilities of both employees and
employers, we have previously refused to disturb the delicate balance created by the
legislature by implying provisions not expressly included in the legislative scheme.
104 Nev. 742, 746 (1988) Ransier v. SIIS
to disturb the delicate balance created by the legislature by implying provisions not
expressly included in the legislative scheme.
See also Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 729 P.2d 1355 (1986). There is no
statutory authority within the workers' compensation act that authorizes suits by SIIS to
recover erroneously paid benefits.
We said in Dep't Ind. Relations v. Circus Circus, 101 Nev. 405, 411-12, 705 P.2d 645, 649
(1985), that:
One of the burdens of the system [for self-insurers] is the prompt payment of benefits,
and if payment is determined to be unwarranted, the self-insurer must seek
reimbursement of benefits it paid. The self-insured employer is protected by the system
in the same manner as is the SIIS: it must pay the benefits until a stay order is issued, or
until an appeal determines the injury is not compensable. . . . The self-insured employer
is obligated to act as the SIIS would do in like circumstances. . . . Along with the
benefits of being a self-insurer, this is one of the burdens accepted: the employer must
pay the claim and seek recovery later if payment is in error. . . . (Emphasis supplied.)
SIIS contends that Circus Circus grants it the right to recover payments later determined to
be unwarranted. SIIS sees the inability to recover benefits paid but found unwarranted on
appeal as a no-win situation: absent a financial incentive to appeal unwarranted payments,
the appeals process is useless.
2
Ransier contends that SIIS may do nothing more than request
a voluntary return of the overpayment.
Worker's compensation laws must be liberally construed and broadly interpreted to protect
injured workers. See Circus Circus, 101 Nev. at 410-11, 705 P.2d at 648 (1985); Industrial
Commission v. Peck, 69 Nev. 1, 239 P.2d 244 (1962). Although SIIS forwards valid policy
reasons to allow recoupment, we cannot justify the inclusion of a new cause of action to
enforce a substantive right that is unsupported by any fair reading of the statutory scheme.
Moreover, we note that Circus Circus involved recoupment by a private self-insurer, not a
claim paid by SIIS.
3
Further, Ransier has done no wrong; he asked only for a lump sum
payment to support his family during his rehabilitation period.
____________________

2
We do not consider a situation where benefits are gained through fraud. Such benefits may be recovered
pursuant to NRS 616.675.

3
We do not decide today what right a self-insured employer may have to seek recoupment of funds under
similar facts.
104 Nev. 742, 747 (1988) Ransier v. SIIS
period. Finally, although SIIS supports the policy of liberal construction of the laws to protect
workers, such a construction in the instant case would place Ransier in the untenable position
of using the benefits paid to him at the risk of having to repay them at a point when his family
resources were even more greatly stressed.
We hold that SIIS cannot recoup funds properly paid to a claimant pending an appeal,
which are later found to be unwarranted after the appeal.
4
We accordingly affirm the district
court judgment that apportions Ransier's award, and instruct the district court to vacate the
$19,655.56 judgment entered against Ransier.
Gunderson, C. J., Young, Steffen, and Springer, JJ., concur.
____________________

4
There are no reported court decisions contrary to this conclusion. See, e.g., Thompkins v. George Rinner
Construction Co., 409 P.2d 1001 (Kan. 1966) (payments made pending appeal not recoverable without statutory
authority in workmen's compensation act); American Mut. Ins. Companies v. Murray, 420 A.2d 251 (Me. 1980)
(no implied right of recovery for unjust enrichment for money paid pending appeal and found undeserved);
Matter of Johner, 643 P.2d 932 (Wyo. 1982); Kerans v. Industrial Com'n of State of Utah, 713 P.2d 49 (Utah
1985).
____________
104 Nev. 747, 747 (1988) Sheriff, Washoe County v. Sferrazza
SHERIFF, WASHOE COUNTY, Appellant, v.
PETER J. SFERRAZZA, Respondent.
No. 18983
December 29, 1988 766 P.2d 896
Appeal from order granting a pretrial petition for a writ of habeas corpus. Second Judicial
District Court, Washoe County; Roy L. Torvinen, Judge.
Attorney charged with violation of statute requiring him to report suspected child abuse
petitioned for writ of habeas corpus. The district court granted petition, and appeal was taken.
The Supreme Court held that statute requiring certain professionals to report incidents of
suspected child abuse or neglect immediately after determining that there is reason to
believe that abuse or neglect has occurred is unconstitutionally vague.
Affirmed.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, Washoe
County, for Appellant.
Calvin R.X. Dunlap, Reno, for Respondent.
104 Nev. 747, 748 (1988) Sheriff, Washoe County v. Sferrazza
Infants.
Statute requiring certain professionals to report incidents of suspected child abuse or neglect
immediately after determining that there is reason to believe that abuse or neglect has occurred is
unconstitutionally vague; term immediately vests prosecuting authorities with unbridled discretion to
determine whether report was made quickly enough. NRS 432B.220; U.S.C.A.Const. Amends. 5, 14.
OPINION
Per Curiam:
Respondent (Sferrazza) is an attorney engaged in the private practice of law in Nevada. On
October 13, 1987, a criminal complaint was filed in the Justice's Court of Reno Township,
Washoe County, alleging that on September 8, 1987, Sferrazza, while acting as an attorney at
law, acquired a reason to believe that a minor child was the victim of child abuse and failed to
report that knowledge immediately to an appropriate law enforcement agency. Therefore, the
complaint alleged that Sferrazza committed a misdemeanor in violation of NRS 432B.220
and 432B.240.
1
The complaint was filed in spite of the undisputed fact that Sferrazza did
report the suspected child abuse to the proper authorities two weeks after he first acquired any
information whatever regarding the suspected abuse.
Sferrazza subsequently moved the justice's court to dismiss the criminal complaint
pending against him. After the justice's court denied his motion, Sferrazza filed a pretrial
petition for a writ of habeas corpus in the district court. The state opposed Sferrazza's petition
and, on February 17, 1988, the district court held a hearing on the petition. At that hearing,
the state stipulated that Sferrazza did not make his report after learning that another
individual was about to report the suspected abuse, and that Sferrazza's report met the
requirements of the reporting statute.
____________________

1
NRS 432B.220 provides in pertinent part:
1. A report must be made immediately to an agency which provides protective services or to a law
enforcement agency when there is reason to believe that a child has been abused or neglected. . . .
2. Reports must be made by the following persons who, in their professional or occupational
capacities, know or have reason to believe that a child has been abused or neglected:
. . . .
(i) An attorney, unless he has acquired the knowledge of the abuse or neglect from a client who is or
may be accused of the abuse or neglect.
. . .
NRS 432B.240 provides:
Any person who knowingly and willfully violates the provisions of NRS 432B.220 is guilty of a
misdemeanor.
104 Nev. 747, 749 (1988) Sheriff, Washoe County v. Sferrazza
The district court subsequently granted Sferrazza's habeas corpus petition, and dismissed the
criminal charges pending against Sferrazza. This appeal followed.
Because a criminal penalty may be imposed on persons who fail to comply with the
reporting requirements of NRS 432B.220, the terms of that statute must be clear enough to
inform those who are subject to the reporting provisions what conduct will render them liable
to a criminal sanction. See In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967); Coates v. City of
Cincinnati, 402 U.S. 611 (1971). Indeed, [a] statute which requires the doing of an act in
terms so vague that men of common intelligence necessarily must guess at its meaning and
differ as to its application violates the first essential of due process. Dunphy v. Sheehan, 92
Nev. 259, 262, 549 P.2d 332, 334 (1976). See also Connally v. General Const. Co., 269 U.S.
385 (1926).
NRS 432B.220 requires the professionals who are listed in that statute to report incidents
of suspected child abuse or neglect immediately after determining that there is a reason to
believe that the abuse or neglect has occurred. The meaning of the term immediately is thus
at issue here. In the present case, Sferrazza reported the suspected abuse two weeks after he
first acquired a reason to suspect the abuse. At oral argument, the state opined that in some
circumstances a person could be prosecuted if he delayed a mere fifteen minutes before
reporting an incident of suspected child abuse to the authorities. This illustrates clearly that
the word immediately vests in the prosecuting authorities unbridled discretion to determine
whether a report of suspected child abuse was made quickly enough to satisfy the mandate of
NRS 432B.220. Under the statute as presently written, a professional who acquires a reason
to suspect that a child is being abused or neglected would report his suspicions only at great
risk to himself of prosecution for failing to make an immediate report. NRS 432B.220 fails
to inform those professionals who are subject to its terms what conduct will render them
liable for criminal sanctions. Thus, the statute its unconstitutionally vague. See Dunphy, 92
Nev. at 262, 549 P.2d at 334; Laiolo, 83 Nev. at 188, 426 P.2d at 727; Coates, 402 U.S. at
614; Connally, 269 U.S. at 392.
In addition to the deficiency in the statute noted above, this statute raises concerns which
go far beyond the meaning of the term immediate. Specifically, the statute purports to
impose criminal liability against professionals on the sole basis that those professionals may,
in the course of their employment, have obtained a reason to believe that a child has been
neglected or abused. The statute does not attempt to define the type of knowledge that might
satisfy that standard, nor does the statute leave any room for investigation and the exercise
of professional judgment.
104 Nev. 747, 750 (1988) Sheriff, Washoe County v. Sferrazza
any room for investigation and the exercise of professional judgment. If, for example, a
professional person, in the course of counseling a client, is told that an abuse has taken place,
it could be argued that the professional had a reason to believe an abuse has occurred and
was therefore under a duty to report the alleged abuse even though, based on his or her
experience, observation of the demeanor of the complainant, and professional judgment, the
professional person believes the report to be untrue and unreasonable. If this construction
were accorded the statute, then the professional would be forced to report the alleged abuse,
or run the risk that a prosecutor, with the aid of hind sight, might second guess the
professional's judgment and charge him or her with a serious criminal offense. However, in
light of our conclusion that NRS 432B.220 is unconstitutionally vague, we need not now
consider such other concerns which are raised by placing professionals under burdens that
may conflict with their duties to behave in a responsible manner.
Accordingly, for the reasons expressed above, we conclude that the district court properly
granted Sferrazza's petition for a writ of habeas corpus, and we affirm that decision.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 750, 750 (1988) Wise v. Bechtel Corp.
THOMAS WISE, LA REE WISE, JOHN FREDERICK WILLIAMS, SHEILA WILLIAMS,
ASSOCIATED PIPING AND ENGINEERING CORPORATION AND WICKES
MANUFACTURING COMPANY, Appellants, v. BECHTEL CORPORATION, LOS
ANGELES DEPARTMENT OF WATER AND POWER, NEVADA POWER COMPANY
AND SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT, Respondents.
No. 18603
December 30, 1988 766 P.2d 1317
Certified questions pursuant to NRAP 5. The United States District Court, District of
Nevada; Lloyd D. George, Judge.
In action seeking damages for injuries sustained when pipe carrying superheated steam
failed, the United States District Court for the District of Nevada, Lloyd D. George, J.,
certified question. The Supreme Court held that: (1) statute of repose for actions for damages
for injuries caused by any latent deficiency in design, planning, supervision or observation
of construction or construction of improvement to real property does not violate equal
protection in exempting material suppliers from statute's protection, and {2) statute did
not violate one subject clause of State Constitution.
104 Nev. 750, 751 (1988) Wise v. Bechtel Corp.
design, planning, supervision or observation of construction or construction of improvement
to real property does not violate equal protection in exempting material suppliers from
statute's protection, and (2) statute did not violate one subject clause of State Constitution.
Questions answered.
Lovell, Bilbray & Potter and Robert J. Kossack, Las Vegas, for Appellants Thomas Wise,
La Ree Wise, John Frederick Williams and Sheila Williams.
Vargas & Bartlett and Von S. Heinz, Reno, and Knapp, Petersen & Clarke and Lance
Nicholas Jurich, Mitchell Fenton and David Haber, Universal City, California, for Appellant
Associated Piping and Engineering.
Thomas D. Beatty, Las Vegas, and Dickson, Carlson & Campillo and William B.
Fitzgerald, Steven L. Hoch and Amor Esteban, Santa Monica, California, for Appellant
Wickes Manufacturing Company.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, and Thelen, Marrin, Johnson &
Bridges and Walter A. Stringfellow and Harold E. Hamersmith, Los Angeles, California, for
Respondent Bechtel Power Corporation.
Lionel, Sawyer & Collins and Cam Ferenbach, Las Vegas, and Tucker & Johnston, Los
Angeles, California, for Respondents Los Angeles Department of Water and Power, Nevada
Power Company, and Salt River Project Agricultural Improvement and Power District.
Daniel F. Polsenberg and J. R. Crockett, Las Vegas, Amicus Curiae for NTLA.
Brian McKay, Attorney General, and Brooke Nielsen, Deputy, Carson City, Amicus Curiae
for State of Nevada.
1. Constitutional Law; Limitation of Actions.
Statute of repose for actions for damages for injuries caused by any latent deficiency in design, planning,
supervision or observation of construction or construction of an improvement to real property did not
violate equal protection in exempting material suppliers from statute's protection. NRS 11.204; Const.
Art. 4, 17.
2. Statutes.
Title of statute mentioning both statutes of repose and statutes of limitations did not violate one subject
clause, as statute only concerned one subject. NRS 11.204; Const. Art. 4, 17.
104 Nev. 750, 752 (1988) Wise v. Bechtel Corp.
OPINION
Per Curiam:
This proceeding is before this court pursuant to the certification procedure set forth in
NRAP 5.
1
Upon motion of appellant Wickes Manufacturing Company, and good cause
appearing, the United States District Court for the District of Nevada certified the following
issues to this court:
(1) whether 11.204 of the Nevada Revised Statutes violates the equal protection
clause of the Nevada Constitution; and
(2) whether 11.204 of the Nevada Revised Statutes violates Article 4, 17 of the
Nevada Constitution.
For the reasons set forth below we hold that NRS 11.204 does not violate the equal protection
clause or Article 4, 17 of the Nevada Constitution.
Appellants Thomas Wise and John Williams were injured in the June 9, 1985 accident at
Unit 2 of the Mohave Generating Station (the plant) near Laughlin. A thirty inch pipe,
carrying superheated steam at 1000 degrees fahrenheit and 600 pounds of pressure per square
inch failed along a seam. Steam was forced into the plant's control room and lunch room,
where Wise and Williams were located. Respondent Bechtel Corporation designed, built and
now maintains the plant. Respondents Los Angeles Water and Power, Nevada Power
Company and Salt River Project own the plant (the owners). Appellant Wickes
Manufacturing Company (Wickes) manufactured the pipe that burst. Appellant Associated
Piping and Engineering Corporation (Associated) installed the pipe in the plant, and was
responsible for the welding at the failure point.
Wise, Williams and their spouses (the plaintiffs) sued Bechtel, Wickes, Associated and
the owners in November of 1985 in the United States District Court, District of Nevada.
Bechtel moved for partial summary adjudication, contending that more than eight years had
passed since substantial completion of the plant, thereby barring any suit for injuries caused
by latent defects in the deficient construction.
____________________

1
NRAP 5 provides in part:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a
Court of Appeals of the United States, or of the District of Columbia, or a United States District Court, when
requested by the certifying court, if there are involved in any proceeding before those courts questions of law of
this state which may be determinative of the cause then pending in the certifying court and as to which it appears
to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
104 Nev. 750, 753 (1988) Wise v. Bechtel Corp.
defects in the deficient construction. The plaintiffs, joined by Wickes and Associated, who
were defendants below, opposed the motion, contending that NRS 11.204 violated the equal
protection clauses of the Nevada and United States Constitutions, violated Article 4, 17 of
the Nevada Constitution, and does not bar claims for indemnity or contribution. The United
States District Court then certified the above questions to this court.
The legislature enacted NRS 11.204 after this court struck down NRS 11.205 in the State
Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983).
2
In State Farm, this court held
that NRS 11.205 violated the equal protection clause of the United States and Nevada
Constitutions because it insulated architects and contractors from liability, while owners of
property and material suppliers were not protected by the statute.
In enacting NRS 11.204, the legislature included owners of property within the protected
classes, but continued to exempt material suppliers from the statute's protection. Appellants
contend that the equal protection clause is offended by this classification because there is no
rational basis for excluding material suppliers from the statute's protection. We disagree.
[Headnote 1]
Materials are products, and in 1983, the legislature enacted a statute which specifically
denied the immunity defenses provided by NRS 11.203-205 when the injury was due to a
defective product.3 Because our legal system has a well developed body of products
liability law, there exists a rational basis for distinguishing between owners, occupiers,
architects and builders of improvements to real property, as opposed to manufacturers
and material suppliers.
____________________

2
NRS 11.204 provides in pertinent part:
1. Except as otherwise provided in NRS 11.202 and 11.203, no action may be commenced against
the owner, occupier or any person performing or furnishing the design, planning, supervision or
observation of construction, or the construction, of an improvement to real property more than 8 years
after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any latent deficiency in the design, planning, supervision or observation of construction or the
construction of such an improvement;
. . . .
(c) Injury to or the wrongful death of a person caused by any such deficiency.
. . . .
3. For the purposes of this section, latent deficiency means a deficiency which is not apparent by
reasonable inspection.
NRS 11.205 provided:
1. No action in tort, contract or otherwise shall be commenced against any person performing or
furnishing the design, planning, or supervision or observation of construction, or the construction, of an
improvement to real property more than six years after the substantial completion of such an
improvement, for the recovery of damages for:
(a) Any deficiency in the design, planning, supervision or observation of construction or construction
of such improvement.
104 Nev. 750, 754 (1988) Wise v. Bechtel Corp.
product.
3
Because our legal system has a well developed body of products liability law, there
exists a rational basis for distinguishing between owners, occupiers, architects and builders of
improvements to real property, as opposed to manufacturers and material suppliers.
Therefore, we hold that the current version of NRS 11.204 does not violate the equal
protection clause of the Nevada Constitution. To the extent that our opinion in State Farm
indicates otherwise, it is disapproved.
Appellants contend that because the title of NRS 11.204 mentions both statutes of repose
and statutes of limitations, the statute is unconstitutional. Specifically, appellants contend that
the statute's title violates the one subject clause of Article 4, 17 of the Nevada Constitution.
Article 4, 17 of the Nevada Constitution provides, in pertinent part: Each law enacted
by the legislature shall embrace but one subject, and matter, properly connected therewith,
which subject shall be briefly expressed in the title. . . . There is a strong presumption in
favor of the constitutionality of statutes, which can only be overcome by clear and
fundamental violations of the law. See State v. Com's Humboldt Co., 21 Nev. 235, 238, 29 P.
974, 975 (1892). This court has liberally construed the one subject and briefly expressed
clauses of Article 4, 17. See State v. Payne, 53 Nev. 193, 197, 245 P. 770, 771-72 (1931)
(stating that [t]he constitutional requirement, though mandatory, must be liberally construed,
lest meritorious legislation be declared void by reason of inartificiality in the title.) [T]he
main test of the application of the clause to a particular statute is whether the title is of such a
character as to mislead the public and the members of the legislature as to the subjects
embraced in the act. . . . Payne, 53 Nev. at 197, 295 P. at 771.
[Headnote 2]
Senate Bill 236, 1983 Nevada Stats. ch. 468, at 1237, included what became NRS
11.202-11.206.
4
Although the drafters used the word limitation, the choice of language is
accurate because statutes of repose limit the period of time in which an action may be
brought. Therefore, we hold that the title of the act is not of such a character as to mislead
either the public or the legislature.
____________________

3
NRS 11.206 provides:
The limitations respectively prescribed by NRS 11.203, 11.204 and 11.205 are not a defense in an
action brought against:
. . . .
2. Any person on account of a defect in a product.

4
NRS 11.202-11.206 are all statutes of repose concerning improvements to real property. Statutes of repose
bar causes of action after a certain period of time, regardless of whether damages or an injury has been
discovered. In contrast, statutes of limitation foreclose claims brought after a period of time following
occurrence or discovery of an injury.
104 Nev. 750, 755 (1988) Wise v. Bechtel Corp.
such a character as to mislead either the public or the legislature. The statute only concerns
one subject and does not violate Article 4, 17 of the Nevada Constitution.
5

____________________

5
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 755, 755 (1988) Erickson v. One Thirty-Three, Inc.
RONALD ERICKSON, Appellant, v. ONE THIRTY-
THREE, INC., and ASSOCIATES, Respondent.
No. 18455
December 30, 1988 766 P.2d 898
Appeal from order granting summary judgment. Second Judicial District Court, Washoe
County; Jerry Carr Whitehead, Judge.
Casino brought indemnity action against employee to recover punitive damages paid to a
customer in connection with an altercation involving employee. The district court granted
summary judgment for casino and employee appealed. The Supreme Court held that dismissal
of complaint was mandatory, where five years had passed since casino filed cross-claim
against employee to such relief in a suit brought by customer, and casino had not pursued
matter for five years.
Reversed and remanded with instructions.
D. Michael Clasen, Reno, for Appellant.
Hill, Cassas, de Lipkau and Erwin, Reno, for Respondent.
1. Pretrial Procedure.
Dismissal by stipulation is not effective, unless filed by all parties to the suit, but stipulation which does
not meet formal requirements of rule may be accepted as a voluntary dismissal. NRCP 41(a).
2. Pretrial Procedure.
Plaintiff who twice dismisses suit may not bring a third action.
3. Pretrial Procedure.
Dismissal of complaint by casino against employee for indemnification for punitive damages paid to a
customer in connection with an altercation involving employee was mandatory, where casino had filed
cross-claim against employee for such relief in suit brought by customer, and casino had not pursued matter
for five years.
4. Stipulations.
Stipulation that action was moot was of no effect in preventing dismissal for failure to prosecute, because
it was not a stipulation to extend time under the civil procedure rules. NRCP 41(e).
104 Nev. 755, 756 (1988) Erickson v. One Thirty-Three, Inc.
5. Judgment.
Mandatory dismissal of a lawsuit, for delay in bringing it to trial, is res judicata and bars any other suit
based on the same claim, unless otherwise provided by the court. NRCP 41(e).
6. Equity.
Laches is an equitable doctrine which will be invoked when delay by one party works to the disadvantage
of the other, causing a change of circumstance which would make the grant of relief to the delaying party
inequitable.
7. Equity.
Casino was barred by laches from recovering, from employee, punitive damages paid to customer in an
earlier lawsuit arising out of an altercation involving employee, where casino's suit was begun five years
after customer's suit, and casino had obscured its intent to sue employee by providing employee legal
representation in customer's suit, thus dissuading employee from retaining his own counsel, impleading
other employees, and litigating the issue of relative fault.
OPINION
Per Curiam:
This is an appeal from a grant of summary judgment by the district court in favor of the
respondent. We conclude the district court erred, and therefore reverse its judgment.
The underlying cause of this litigation occurred on December 13, 1980 at the Onslow
Hotel and Casino, owned by the respondent. Ronald Erickson, the Onslow's general manager,
became involved in a physical confrontation with a patron of the casino, James Jones.
Erickson notified the Onslow's security department, and shortly thereafter two guards took
charge of the situation and directed Jones into one of the casino's back rooms. Apparently a
third guard also participated in the detention of Jones, which finally resulted in his arrest.
Erickson asserts he was not involved in the treatment of Jones after the arrival of the guards,
other than briefly visiting the back room some five to ten minutes later.
Jones sued the Onslow and Erickson for battery and false imprisonment. None of the three
guards were named in the lawsuit. Jones won a judgment of $5,000 in compensatory damages
and $25,000 in punitive damages. Respondent's insurance company paid the compensatory
damages, but refused to pay the punitive damages because they were not covered by the
Onslow's policy. Respondent therefore paid the punitive damages award of $25,000.
Shortly after Jones filed suit, the Onslow answered his complaint and asserted a
cross-claim against Erickson for indemnity. This cross-claim was voluntarily dismissed by
the respondent on June 9, 1982. Erickson was not served with either the cross-claim or the
dismissal.
104 Nev. 755, 757 (1988) Erickson v. One Thirty-Three, Inc.
or the dismissal. In fact, after dismissing its cross-claim, the Onslow volunteered to provide
Erickson with legal representation during the trial. Erickson was not aware of the Onslow's
intent to sue him for indemnity until five months after the jury reached a verdict, when he was
finally served with the original cross-claim. He hired counsel and answered the cross-claim,
completely unaware that a voluntary dismissal had already been entered.
[Headnotes 1, 2]
The cross-claim was filed on May 15, 1981. On May 19, 1986, Erickson moved for
mandatory dismissal of the case under NRCP 41(e). Instead of granting the dismissal, the
district court accepted a stipulation which stated that the action was moot in light of the 1982
voluntary dismissal. The stipulation was faulty, however, as it was signed only by
respondent's counsel.
1

Six weeks later, the Onslow filed a new action in another department of the district court,
seeking indemnity from Erickson for the punitive damages award paid to Jones. The Onslow
then moved for summary judgment, arguing that Erickson owed it the full amount of punitive
damages, plus interest, because his actions had caused Jones' injuries. The district court
granted summary judgment in favor of the Onslow, concluding that Erickson should pay the
damages as a matter of law. The record reveals serious error, however, which precludes
summary judgment for the respondent. We therefore reverse the district court's judgment.
[Headnotes 3-5]
At the time appellant moved to dismiss the action, five years had passed since the filing of
the cross-claim and the case had not yet gone to trial. A dismissal is mandatory under such
circumstances. See Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). The district court
erred in not entering the mandatory dismissal. The stipulation submitted by the respondent is
of no effect because it was not a stipulation to extend time as required by NRCP 41{e).
____________________

1
A court has the inherent power to look behind a stipulation for improper conduct. United States v.
Mercedes-Benz of North America, 547 F.Supp. 399 (N.D.Cal. 1982). The record shows that the stipulation was
signed by respondent's counsel and stamped with the name of the district court judge. A dismissal by stipulation
pursuant to NRCP 41(a) is not effective unless filed by all parties to the suit. See United States v. Transocean
Air Lines, Inc., 356 F.2d 702 (5th Cir. 1966). A stipulation which does not meet the formal requirements of the
rule may nevertheless be accepted as a voluntary dismissal. Pipeliners Local Union No. 798, Tulsa, Okl. v.
Ellerd, 503 F.2d 1193 (10th Cir. 1974). If the stipulation is accepted as a voluntary dismissal, respondent's suit is
barred; a plaintiff who twice dismisses his suit is prohibited from bringing a third action. Gioia v. Blue Cross
Hospital Service, Inc. of Mo., 641 F.2d 540 (8th Cir. 1981).
104 Nev. 755, 758 (1988) Erickson v. One Thirty-Three, Inc.
effect because it was not a stipulation to extend time as required by NRCP 41(e). Johnson v.
Harber, 94 Nev. 524, 582 P.2d 800 (1978); Thran v. District Court, 79 Nev. 176, 380 P.2d
297 (1963). A dismissal under NRCP 41(e) is res judicata and bars any other suit based on
the same claim, unless otherwise provided by the court. Lighthouse v. Great W. Land &
Cattle, 88 Nev. 55, 493 P.2d 296 (1972). The Onslow has failed to provide any reason for the
delay, and it is the plaintiff's duty to use diligence at every stage of the proceeding. Thran,
supra, 79 Nev. at 181, 380 P.2d at 300. When no adequate excuse is offered for a lengthy
delay, injury to the defendant is presumed, and the court may infer that the case lacks merit.
Northern Ill. Corp. v. Miller, 78 Nev. 213, 370 P.2d 955 (1962). We conclude that the
mandatory dismissal should have been granted, with prejudice, in response to Erickson's
41(e) motion, thereby barring the instant suit.
[Headnotes 6, 7]
Summary disposition of this case in favor of Erickson is also justified by the principles of
laches. Laches is an equitable doctrine which will be invoked when delay by one party works
to the disadvantage of the other, causing a change of circumstances which would make the
grant of relief to the delaying party inequitable. Pub. Service Comm'n v. Sierra Pacific, 103
Nev. 187, 734 P.2d 1245 (1987); Leaver v. Grose, 610 P.2d 1262 (Utah 1980). Respondent's
delay in notifying appellant of the contemplated indemnity action and its further delay in
litigating the case after serving the cross-claim has prejudiced Erickson's ability to defend
himself against the charge that he was primarily responsible for the tortious acts against
Jones. The Onslow provided Erickson with legal representation at trial, obscuring its intent to
sue him for indemnity. Erickson was thereby dissuaded from retaining his own counsel,
impleading the guards and litigating the issue of relative fault. The jury which awarded the
punitive damages could also have determined which employees were at fault for each of the
injuries suffered by Jones, but it was not allowed the opportunity to do so.
The cross-claim for indemnity was not served on the appellant until five months after the
trial, almost two years after it was initially filed. Respondent then failed to bring the action to
trial in a timely manner. The delay in this case is attributable primarily to a lack of diligence
on the part of the respondent. Appellant caused no significant delay, and has been
considerably prejudiced by it. It would therefore be inequitable to permit the respondent to
proceed with its indemnity claim.
104 Nev. 755, 759 (1988) Erickson v. One Thirty-Three, Inc.
The district court erred in granting summary judgment in favor of the respondent. We
therefore reverse the judgment of the district court, and remand the matter with instructions to
enter summary judgment in favor of the appellant.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 759, 759 (1988) Messner v. District Court
GRANT J. MESSNER, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE
HONORABLE MICHAEL J. WENDELL, District Judge, Respondent, VIRGINIA L.
MIRACLE, aka VIRGINIA L. MESSNER, Real Party in Interest.
No. 19358
December 30, 1988 766 P.2d 1320
Original petition for writ of mandamus. Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Former wife of military retirement beneficiary filed suit seeking to acquire portion of
beneficiary's military benefits. Beneficiary brought petition for extraordinary writ challenging
order of district court denying motion to quash for lack of personal jurisdiction. The Supreme
Court held that under federal law, nonresident beneficiary's prior consent to jurisdiction over
divorce 30 years ago was not sufficient consent to allow exercise of jurisdiction over
beneficiary in present action.
Writ of prohibition granted.
[Rehearing denied March 8, 1989]
Dickerson, Dickerson & Lieberman, and Louis J. Tavano, Las Vegas, for Petitioner.
LePome, Willick & Gorman, Las Vegas, for Respondent.
Divorce.
Under federal law, nonresident military retirement beneficiary's prior consent to Nevada jurisdiction over
divorce 30 years ago was not consent to new separate action filed by ex-wife seeking share of military
pension benefits, notwithstanding state statute to the contrary; in light of separate nature of proceedings,
serviceman's actual consent to present action was required. 10 U.S.C.A. 1408(c)(4); NRS 125.161,
subds. 1, 3(c).
104 Nev. 759, 760 (1988) Messner v. District Court
OPINION
Per Curiam:
This original petition challenges an order of the district court denying petitioner's motion
to quash service of process for lack of personal jurisdiction.
1

Petitioner Grant Messner (Grant) served in the United States Army from 1942 to 1963.
Grant married real party in interest Virginia Miracle (Virginia) in 1943 in Washington, D.C.
During their marriage the couple lived in several different states as well as Korea and
Germany. In 1957, Virginia left Grant and moved to Reno, Nevada. Grant then moved to
New York.
In 1959, Virginia filed a complaint for divorce in Nevada. Grant filed an answer to the
complaint and agreed to allow the entry of an uncontested divorce. Grant did not come to
Nevada during the divorce proceedings. On September 17, 1959, the district court entered its
decree of divorce. The divorce decree stated that there was no community property belonging
to the parties in Nevada or elsewhere. The divorce decree did not mention Grant's military
retirement benefits.
After the divorce, Grant continued to live in New York until 1963, then in New Jersey
until 1980, and then in Florida, where he now resides. He states that he has never resided in
Nevada, either as a single or married man. In 1963, Grant retired from the United States
Army after 21 years of service.
On June 1, 1988, nearly 30 years after the divorce, Virginia filed a complaint in the Eighth
Judicial District Court seeking partition of Grant's military retirement benefits. Grant filed a
motion to quash service of process for lack of personal jurisdiction. On August 19, 1988, the
district court denied Grant's motion to quash service of process. Grant then filed the instant
petition requesting this court to issue a writ of mandamus directing the district court to quash
service of process for lack of personal jurisdiction.
The United States Congress has authorized state courts to treat federal military pension
benefits as separate or community property in accordance with the laws of the jurisdiction in
which the courts sits. 10 U.S.C. 1408(c)(1) (1982). Section 1408(c)(4), however,
specifically limits the state court's jurisdiction to divide the military benefits:
____________________

1
Petitioner has sought relief in mandamus. This court has previously stated that prohibition is the appropriate
remedy to challenge the district court's refusal to quash service of process. See Judas Priest v. District Court, 104
Nev. .., 760 P.2d 137 (1988); Shapiro v. Pavlikowski, 98 Nev. 548, 654 P.2d 1030 (1982). Nevertheless, in
the interest of judicial economy, we shall treat the instant petition as one in prohibition. See Koza v. District
Court, 99 Nev. 535, 665 P.2d 244 (1983).
104 Nev. 759, 761 (1988) Messner v. District Court
however, specifically limits the state court's jurisdiction to divide the military benefits:
A court may not treat the disposable retired or retainer pay of a member in the manner
described in paragraph (1) unless the court has jurisdiction over the member by reason
of (A) his residence, other than because of military assignment, in the territorial
jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or
(C) his consent to the jurisdiction of the court.
Grant does not reside in Nevada and he is not domiciled here. Further, his filing of the
motion to quash service of process makes it evident that he does not presently consent to the
district court's exercise of jurisdiction in this matter. He therefore contends that the
requirements of 10 U.S.C. 1408(c)(4) have not been met and that the district court is
precluded from asserting its jurisdiction in this case.
Virginia contends that because Grant filed an answer to the divorce complaint and agreed
to allow the entry of an uncontested divorce nearly thirty years ago, he consented to the
district court's exercise of jurisdiction in the instant matter. We disagree. By answering the
divorce complaint and allowing the entry of the uncontested divorce in 1959, Grant may be
said to have consented to the jurisdiction of the district court over the divorce proceeding. It
cannot reasonably be argued, however, that Grant thereby gave his consent to jurisdiction
over a separate action, nearly thirty years in the future, which was not even contemplated by
the parties at the time of the divorce. Virginia's 1988 complaint for partition of the military
retirement benefits was a separate action brought under NRS 125.161(1). 10 U.S.C.
1408(c)(4) requires that Grant must consent to the district court's jurisdiction over this new
action. See, e.g., Kovacich v. Kovacich, 705 S.W.2d 281 (Tex.Ct.App. 1986) (defendant's
submission to jurisdiction of trial court in 1976 divorce action did not constitute consent to
jurisdiction as to 1983 partition action); Tarvin v. Tarvin, 232 Cal.Rptr. 13 (Cal.Ct.App.
1986) (lawsuit for partition of military pension was not a subsequent proceeding within the
original dissolution action, but an independent action for which jurisdiction must be newly
acquired; defendant must consent to trial court's jurisdiction at the time the partition action is
filed).
Virginia contends that NRS 125.161(3)(c) permits the former spouse of a member of the
armed forces to file an action for the partition of military retirement benefits based upon the
military member's consent to the exercise of jurisdiction at the time the decree of divorce is
entered or at any time thereafter. Congress has expressly provided, however, that a state
court may not divide the military pension unless the military member consents to the
jurisdiction of the court.
104 Nev. 759, 762 (1988) Messner v. District Court
has expressly provided, however, that a state court may not divide the military pension unless
the military member consents to the jurisdiction of the court. Nevada courts therefore may not
assert jurisdiction based upon the military member's consent to jurisdiction in a different
proceeding.
Accordingly, since the jurisdictional requirements of 10 U.S.C. 1408(c)(4) are not
satisfied in this case, we grant this petition. The clerk of this court shall forthwith issue a writ
of prohibition precluding the district court from exercising jurisdiction over petitioner in the
instant action to divide the military retirement benefits.
2

____________________

2
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 762, 762 (1988) Harrah's Club v. State Gaming Control Bd.
HARRAH'S CLUB, dba HARRAH'S TAHOE, Appellant, v. NEVADA STATE GAMING
CONTROL BOARD and KATHERINE BOTELHO, Respondents.
No. 18814
NEVADA GAMING CONTROL BOARD, Appellant,
v. KATHERINE BOTELHO, Respondent.
No. 18668
December 30, 1988 766 P.2d 900
Appeal from an order of the district court granting a petition for a writ of mandamus and
enjoining the Nevada Gaming Control board from reconsidering one of its decisions. First
Judicial District Court, Carson City; Michael E. Fondi, Judge. (No. 18668)
Appeal from an order dismissing petition for judicial review of an order entered by the
Nevada Gaming Control Board. Ninth Judicial District Court, Douglas County; Norman C.
Robison, Judge. (No. 18814)
Gambler who claimed to have won slot machine jackpot at casino filed petition requesting
writ of mandamus or prohibition and injunctive relief against the Nevada Gaming Control
Board. The district court permanently enjoined Board from reconsidering its agent's decision
that casino was obligated to pay jackpot to gambler and Board issued order, based on district
court's decision, directing casino to pay jackpot, and Board appealed. Casino filed petition
contending that order was void, which was dismissed by the district court and casino
appealed. The Supreme Court held that district court had no jurisdiction over nonfinal
decision of Board and thus, its order was void.
104 Nev. 762, 763 (1988) Harrah's Club v. State Gaming Control Bd.
Court held that district court had no jurisdiction over nonfinal decision of Board and thus, its
order was void.
Appeal No. 18668. The district court's order is void.
Appeal No. 18814. Dismissed as moot.
Schreck, Jones, Bernhard, Woloson and Godfrey and David D. Johnson, Las Vegas, for
Appellant Harrah's Club.
Brian McKay, Attorney General, Gloria Stendardi, Deputy, Carson City, for Appellant and
Respondent Nevada Gaming Control Board.
F. Thomas Eck, Carson City, for Respondent Katherine Botelho.
Administrative Law and Procedure: Gaming.
District court did not have jurisdiction to enjoin the Nevada Gaming Control Board from reconsidering
its agent's decision that casino was required to pay jackpot to gambler and to direct Board to order casino
to pay jackpot; only final decisions of Board were subject to review by the district court. Const. Art. 6,
6; NRS 463.362, 463.362, subd. 1, 463.363, 463.3662, 463.3668; NRS 463.365 (Repealed).
OPINION
Per Curiam:
On November 18, 1985, Katherine Botelho claimed to have won a slot machine jackpot at
Harrah's Tahoe (Harrah's). Harrah's refused to pay the jackpot on the grounds that the slot
machine had malfunctioned. The Nevada Gaming Control Board (NGCB) investigated the
dispute. NGCB agent Rasley sent the parties a letter stating that Harrah's was obligated to pay
the jackpot to Katherine Botelho (Botelho). Harrah's filed a petition for reconsideration with
NGCB. Botelho moved NGCB to dismiss the petition as untimely. NGCB held a hearing on
Botelho's motion to dismiss on March 24, 1986. NGCB's final ruling was delayed by a
criminal investigation and the hearing officer's illness. On February 2, 1987, Botelho filed a
petition with the First Judicial District Court requesting a writ of mandamus or prohibition
and injunctive relief. The district court permanently enjoined NGCB from reconsidering its
agent's decision and ordered that a writ of mandate should issue directing NGCB to order
Harrah's to pay the jackpot to Botelho. NGCB appeals that decision in Case No. 18668. In the
meantime, NGCB issued an order, based upon the district court's decision, directing Harrah's
to pay Botelho the jackpot. Harrah's filed a petition in the Ninth Judicial District Court
contending that NGCB's order was void.
104 Nev. 762, 764 (1988) Harrah's Club v. State Gaming Control Bd.
The district court dismissed Harrah's petition on the grounds that it lacked jurisdiction to hear
the case because of NGCB's appeal pending in this court. Harrah's appeals that decision in
Case No. 18814.
NGCB contends that the district court's order granting equitable relief in the form of a
permanent injunction and directing a writ of mandate to issue is void for lack of subject
matter jurisdiction. Specifically, NGCB contends that the district court could only have
jurisdiction if it was reviewing a final decision of the NGCB.
Article 6, 6 of the Nevada Constitution sets forth the jurisdiction of the several district
courts and grants them the power to issue writs of mandamus and injunction as well as other
writs. However, Article 6, 6 does not authorize court intrusion into the administration,
control, supervision and discipline of gaming. Gaming Control Bd. v. Dist. Ct., 82 Nev. 38,
409 P.2d 974 (1966). This authority is vested in the NGCB. When a patron and a licensee are
unable to resolve a disputed gaming debt over $500, it must be reported to the NGCB and
investigated. NRS 463.362(1). A NGCB agent must investigate the dispute and notify the
patron and licensee of his decision in writing. NRS 463.362. An aggrieved party may then file
a petition for reconsideration of the agent's decision with the NGCB. NRS 463.363. NRS
463.365 provided for judicial review of NGCB decisions.
1
Only final decisions, however,
are subject to review. Gaming Control Bd. v. Dist. Ct., 82 Nev. at 40, 409 P.2d at 975. In the
present case, the NGCB has not issued a final decision. Therefore, the district court had no
jurisdiction over this matter and its order is void and of no effect. Accordingly, the NGCB
order requiring Harrah's to pay the jackpot is also void. Having so concluded, we dismiss
appeal No. 18814 as moot.
2

____________________

1
NRS 463.365 was repealed in 1987 and replaced by NRS 463.3662 and 463.3668.

2
We have the fullest confidence that the NGCB will act with alacrity and dispatch to produce a final order.
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this matter.
____________
104 Nev. 765, 765 (1988) Lyon County v. Washoe Medical Center
LYON COUNTY, a Political Subdivision of the State of Nevada, Appellant, v. WASHOE
MEDICAL CENTER, INC., Respondent.
No. 18432
December 30, 1988 766 P.2d 902
Appeal from order denying a motion for change of venue. Second Judicial District Court,
Washoe County; William N. Forman, Judge.
A medical center sued a county to recover the cost of medical care provided to an allegedly
indigent resident of the county. The county moved for a change of venue to the district court
within the county. The district court denied the motion and the county appealed. The Supreme
Court held that the suit must be brought in the district court of the judicial district embracing
the county.
Reversed and remanded with instructions.
William G. Rogers, District Attorney, James N. Varner, Deputy District Attorney, Lyon
County, for Appellant.
Keith S. K. Ching and Barbara Tyler Chang, Reno, for Respondent.
1. Social Security and Public Welfare.
Suit against Lyon County by a Washoe County hospital for services to allegedly indigent resident of Lyon
County had to be brought in Lyon County pursuant to statute authorizing suits against counties; the parties'
dealings with each other were statutory rather than contractual, so that statute providing for venue in county
where contract was made and performed did not apply. NRS 13.010, subd. 1, 428.030, 450.400.
2. Counties.
The term may, appearing in the statute providing where actions may be commenced against counties
was permissive in the sense it permits suits to be brought against counties, but the legislature intended to
restrict the exercise of the privilege to the defendant county's district court, except in a suit by another
county. NRS 13.030, subd. 1.
3. Counties; Venue.
If an impartial trial of suit against county cannot be conducted in the district court of the judicial district
embracing the county, or if the convenience of witnesses and the ends of justice would be better served by
changing the place of trial, the district court may, on motion, change the place of trial, but the action
initially must be commenced in the proper court pursuant to statute requiring that suit be brought in district
court for the county, except in suit by another county. NRS 13.030, subd. 1, 13.050, subd. 2(b),(c).
OPINION
Per Curiam:
On July 14, 1987, respondent Washoe Medical Center, Inc., {WMC) a non-profit Nevada
corporation, brought suit in the Second Judicial District Court of Washoe County against
Lyon County, a political subdivision of the State of Nevada.1 WMC sought recovery of the
costs of medical care it had provided to an allegedly indigent resident of Lyon County.2
Subsequently, Lyon County filed a timely demand and motion for change of venue.
104 Nev. 765, 766 (1988) Lyon County v. Washoe Medical Center
(WMC) a non-profit Nevada corporation, brought suit in the Second Judicial District Court of
Washoe County against Lyon County, a political subdivision of the State of Nevada.
1
WMC
sought recovery of the costs of medical care it had provided to an allegedly indigent resident
of Lyon County.
2
Subsequently, Lyon County filed a timely demand and motion for change
of venue. In Lyon County's view, NRS 13.303(1) requires any suit brought against a county,
except suits brought by another county, to be filed in the district court where the defendant
county is located.
3
The district court rejected Lyon County's position, and, by an order dated
August 26, 1987, denied Lyon County's motion. Lyon County now appeals from the district
court's order. For the reasons set forth below, we reverse the order of the district court.
NRS 13.030(1) provides:
Actions against a county may be commenced in the district court of the judicial
district embracing the county; but actions between counties shall be commenced in a
court of competent jurisdiction in any county not a party to the action.
The language of NRS 13.030(1) is essentially the same as that used when the territorial
legislature first enacted the statutory provision permitting suits to be brought against counties.
See Laws of the Territory of Nevada, ch. XXXVII, 1 (1864). As explained by this court in
Clarke v. Lyon County, 8 Nev. 181, 185-86 (1873), The act prescribing the manner of
commencing actions by or against counties was evidently passed for the express purpose of
giving the power to sue countiesa right which did not exist at common lawand it simply
provides that such actions may be commenced' in certain courts. . . .
In Clarke, Lyon County appealed from an adverse judgment rendered in favor of two
Ormsby County attorneys in the district court of Ormsby County. As a basis for its appeal, it
alleged, among other things, that the plaintiffs had improperly brought the suit in Ormsby
County. Id. at 185. This court held that by appearing and answering the complaint, Lyon
County had waived its right to rely on Sec.
____________________

1
During oral argument, counsel for WMC stated that while WMC was a hospital for the benefit of the
county, NRS 450.390, it was not a county agency. See NRS 13.030(1) (requiring suits between counties to be
brought in a county not a party to the action). Also named were the Estate of Bessie C. Hope and five
unidentified Doe defendants.

2
See NRS 450.400 (providing that the costs of medical care rendered to an indigent resident of another
county are a legal claim against the indigent's county of residence.).

3
In Washoe County v. Wildeveld, 103 Nev. 380, 741 P.2d 810 (1987), Washoe County presented the
identical issue. Because the case was resolved on other grounds, this court declined to decide the issue.
104 Nev. 765, 767 (1988) Lyon County v. Washoe Medical Center
its right to rely on Sec. 21, Ch. 112, Stats. 1869the predecessor statute to NRS 13.050(1).
Id. at 186. Speaking for the court, Justice Hawley stated, If the defendant desired to have the
place of trial changed to the proper county, it should have made demand in writing at or
before the time of answering. Id. (citations omitted) (emphasis added). Citing Williams v.
Keller, 6 Nev. 144 (1870), Justice Hawley added, Upon such application being made, the
court would have been compelled to change the place of trial. Clarke, 8 Nev. at 186. Thus,
implicit in this court's decision in Clarke was its belief that Lyon County was the proper
venue and Ormsby County was not.
[Headnotes 1, 2]
WMC seeks to distinguish Clarke on its facts by stating that Ormsby County was not a
proper forum.
4
We see no difference between the respondents in Clarke and WMC; both
attempted to sue Lyon County in the district court embracing the county of their residence.
WMC also argues that the term may as used in NRS 13.030(1), particularly when
contrasted with the term shall contained in the same section, was intended by the legislature
as permissive, i.e., to permit, but not require, suits to be commenced in the defendant county's
district court. We disagree.
In Good Roads Machinery Co. v. Broadwater County, 20 P.2d 834 (Mont. 1933), the
Supreme Court of Montana interpreted a similar venue statute and concluded that although
the term may was permissive in the sense that it permitted suits to be brought against
counties, the legislature nonetheless intended to restrict the exercise of the privilege to the
courts within the defendant county only.
5
The Supreme Court of Montana stated:
This purpose is found in the initial declaration, viz.: An action against a county may be
commenced, etc. This phrase grants a prospective litigantto one having a grievance
against a countypermission to sue, something not possible without express statutory
authority. That part of the section is permissive, and properly makes use of the word
"may" in its broad and most commonly understood sense.
____________________

4
According to WMC, Washoe County is a proper forum. In WMC's view, venue is proper in Washoe County
pursuant to NRS 13.010(1) because WMC contracted with the deceased, Bessie C. Hope, and performed the
contract in Washoe County. We disagree. Contrary to WMC's assertion, we believe the parties' dealings with
each other were statutory, rather than contractual in nature. See NRS 428.030 and 450.400. Thus, NRS
13.010(1) does not apply and Washoe County is not a proper forum.

5
The statute in question, Montana Revised Code 9095 (1921) provided:
An action against a count may be commenced and tried in such county, unless such action is brought by a
county, in which case it may be commenced and tried in any county not a party thereto.
104 Nev. 765, 768 (1988) Lyon County v. Washoe Medical Center
may in its broad and most commonly understood sense. It confers jurisdiction to
commence an action against a county, but the privilege of such grant of jurisdiction can
only be exercised in the manner and under the terms and restrictions of the section. It is
not a broad general permission or power, but is restricted and limited by its own terms
to the commencement of an action only in a defendant county.
Good Roads, 20 P.2d at 835. Cf. Clarke, supra.
[Headnote 3]
We too believe that our legislature, having conferred upon persons the privilege to bring
suits against counties, restricted its grant to the commencement of suits in the district court
of the judicial district embracing the [defendant] county.
6
See Holliday v. McMullen, 104
Nev. 294, 756 P.2d 1179 (1988) (statutes in derogation of the common law must be strictly
construed) (citing 6 Sutherland, Statutory Construction 61.01-06 (4th ed. 1985)). Today,
just as in 1864, important public interests such as avoiding the costs to taxpayers of defending
actions in other communities, maintaining actions where relevant official records are kept,
and reducing forum shopping militate in favor of this conclusion.
Accordingly, we reverse the order of the district court denying Lyon County's demand and
motion for change of venue and remand this case to the district court with directions to vacate
the order and to order a change of venue to Lyon County.
____________________

6
Of course, if an impartial trial cannot be conducted in the district court of the judicial district embracing
the county, or if the convenience of witnesses and the ends of justice would be better served by changing the
place of trial, the district court may, on motion, change the place of trial. NRS 13.050(2)(b)-(c). The action,
however, initially must be commenced in the proper court.
____________
104 Nev. 768, 768 (1988) Peters v. State Bar
HELEN L. PETERS, Petitioner, v. THE STATE
BAR OF NEVADA, Respondent.
No. 19116
December 30, 1988 766 P.2d 277
Petition for rehearing from order denying petition for waiver of SCR 51(3).
Bar applicant filed petition requesting rehearing of Supreme Court order denying her
application to waive Supreme Court rule requiring that bar applicant has received degree
from ABA approved law school and to authorize her to take bar examination.
104 Nev. 768, 769 (1988) Peters v. State Bar
The Supreme Court, Steffen, J., held that: (1) request for extension of time to file petition for
rehearing and petition for rehearing that were filed nearly two months after order denying
petition was mailed would be denied as untimely, and (2) bar applicant had not demonstrated
that rehearing of her petition to take bar examination was warranted.
Rehearing denied.
Springer, J., dissented.
Norman Y. Herring, Carson City, for Petitioner.
Ann Bersi, Executive Director, State Bar of Nevada, Reno; John E. Howe, Bar Counsel,
and Samuel S. Lionel, Chairman, Board of Bar Examiners, State Bar of Nevada, Las Vegas,
for Respondent.
1. Attorney and Client.
Petition for extension of time to file petition for rehearing and petition requesting rehearing of prior
Supreme Court order denying application to take bar exam would be denied as untimely; appellate rule
contemplates request for extension of time to file request for rehearing will be filed within 15 days allowed
for filing of request for rehearing, applicant had waited nearly two months before filing petition for
rehearing and extension of time to file, and stated to explain delay only that principles of judicial economy
would have been violated if request for rehearing had been filed during pendency of action in federal
district court challenging earlier Supreme Court order, but applicant had waited nearly on full month after
federal action was dismissed before filing request for rehearing. NRAP 40.
2. Attorney and Client.
Bar applicant requesting waiver of Supreme Court rule requiring that bar applicant has received degree
from ABA approved law school had not demonstrated rehearing of denial of her application was warranted,
although she claimed that Supreme Court had overlooked or misapprehended material matters contained in
ABA report concerning particular university college of law; Supreme Court had fully considered those
materials and determined that education applicant received from that college was not functional equivalent
of education offered at ABA accredited law school. SCR 51, subd. 3; NRAP 40.
OPINION
By the Court, Steffen, J.:
On July 22, 1988, this court denied petitioner's request for a waiver of SCR 51(3). On
September 20, 1988, petitioner filed a petition requesting rehearing of this court's prior order
denying her application to take the bar examination. Petitioner also filed a motion to extend
the time within which to file her petition for rehearing.
104 Nev. 768, 770 (1988) Peters v. State Bar
motion to extend the time within which to file her petition for rehearing.
[Headnote 1]
Initially, we note that a request for rehearing must be filed within fifteen (15) days after
service of written notice of entry of judgment unless the time is enlarged by an order of this
court. NRAP 40 contemplates that a request for an extension of time within which to file a
petition for rehearing will be filed within the fifteen day period. In the present case, as noted
above, this court issued its order denying the petition in this case on July 22, 1988. The clerk
of this court mailed petitioner a copy of our order that same day. Nevertheless, petitioner
waited nearly two months before she filed her petition for rehearing and motion for extension
of time within which to file a petition for rehearing. Further, to explain her delay, petitioner
states only that principles of judicial economy would have been violated if she had filed her
request for rehearing during the pendency of her action in the federal district court, which
challenged our order of July 22, 1988. We note, however, that petitioner waited nearly a full
month after her federal action was dismissed before filing her request for rehearing, and
petitioner has failed to offer any explanation or to demonstrate cause for this delay. Therefore,
we deny as untimely the motion for an extension of time and the petition for rehearing.
[Headnote 2]
We further note that, in support of the request for rehearing, petitioner contends that this
court overlooked or misapprehended material matters contained in the ABA Site Evaluation
Report and Action Letter concerning Western State University College of Law. We disagree.
This court fully considered these materials and determined that the education petitioner
received from Western State University College of Law was not the functional equivalent of
an education offered at an ABA-accredited law school. Thus, we conclude that petitioner has
not demonstrated that rehearing is warranted under NRAP 40.
Young and Mowbray, JJ., concur.
Gunderson, C. J., concurring:
Although I agree we must deny petitioner relief, I do so with some regret and reluctance,
and, despite our ruling, I feel we are obligated to mention a matter which has potential
significance to petitioner's federal action.
Because the State Bar's secretary has complied with our December 21 order, and has
returned our files on petitioner, we now know that petitioner compiled a passing grade on
the 19SS bar examination.1 We should of course preserve the evidence of this fact, for
whatever value it may hereafter be accorded in the federal courts.
104 Nev. 768, 771 (1988) Peters v. State Bar
now know that petitioner compiled a passing grade on the 1988 bar examination.
1
We
should of course preserve the evidence of this fact, for whatever value it may hereafter be
accorded in the federal courts.
While it may be inappropriate at this point to reveal the precise numerical grade achieved
by petitioner, it should be noted that petitioner's grade was very respectable. Indeed, by way
of example, our clerk advises that such grade exceeds by several points any grade achieved by
any of the fifteen members of our current Board of Bar Governors, and that it is close to eight
points higher than the average of the grades achieved by these able bar leaders.
Springer, J., dissenting:
I dissent. On this rehearing, after careful consideration, I have come to the conclusion that
the only fair and proper action that this court can take is to grant Ms. Peters a license to
practice law in this state.
I say fair because it is manifestly unfair for this woman to study and prepare, to take an
arduous three-day examination, to pass with a high grade and then to be told that she is being
denied admission to the bar.
I say proper because there is no concern here that we would be improperly allowing an
unqualified person to enter the law profession. In addition to getting a high grade on her bar
examination, I see from the record that Ms. Peters is already licensed to practice in California,
having passed the very difficult California bar examination, and that she was an excellent
student in law school.
On the point of fairness I note that Ms. Peters took our bar examination under the orders of
a United States District Judge. With utmost respect I express my view that the federal judge
acted improperly in so interfering with Nevada's bar admission process; still, the stark fact
remains: Ms. Peters took the bar, and she passed it.
1
Absent some showing or at least a
contention that Ms.
____________________

1
Because the secretary, Mrs. Bersi, removed petitioner's files from this court's custody without proper
authorization, and also refused to supply court members with information they requested concerning petitioner's
grades, the court felt constrained to enter an order in regard thereto.

1
Ms. Peters does not aver in her petition that she passed the examination with a high grade because she has
never been advised of this fact. It was only by accident that this court learned of it. The bar secretary did not
communicate this fact to the court, and it was only when a member of the court inquired out of curiosity as to
Ms. Peters' performance that it was learned that all records relating to Ms. Peters had been unauthorizedly
removed by the bar secretary from the court clerk's office. It was only by virtue of a direct order of this court to
the bar secretary that the court learned of Ms. Peters having passed the examination.
104 Nev. 768, 772 (1988) Peters v. State Bar
Ms. Peters is professionally unqualified I think fairness dictates that we admit her or any such
person who prepares for and passes our bar examination, after being granted authority to take
the examination through the intervention of a federal court.
____________
104 Nev. 772, 772 (1988) Allstate Ins. Co. v. Furgerson
ALLSTATE INSURANCE COMPANY, a Corporation,
Appellant, v. EDD P. FURGERSON, Respondent.
No. 18876
December 30, 1988 766 P.2d 904
Appeal from an order of the district court granting summary judgment in favor of
respondent. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Insurer, as subrogee of owners of house containing cracks and a defective roof, sued the
contractor. The district court granted contractor's motion for summary judgment. Insurer
appealed. The Supreme Court held that: (1) the statute of repose applicable to contractors is
not unconstitutional on equal protection grounds, because there exists a rational basis for
distinguishing between material suppliers, who are subject to products liability laws, and
owners, occupiers, architects and builders of improvements to real property who are not, and
(2) the statute will not be given retrospective effect, so as to bar the action when the statute
was not in effect at the time the injury in question occurred.
Reversed.
Beckley, Singleton, DeLanoy, Jemison & List, and Daniel F. Polsenberg, Reno, for
Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, and Stanley Steiber, Carson City,
for Respondent.
1. Constitutional Law; Limitation of Actions.
Statute of repose, barring suit against contractors and others for latent defects after eight years did not
deny equal protection on ground that no such immunity is provided to suppliers of materials, as there exists
a rational basis for distinguishing between suppliers of material, who are covered by the products liability
law, and owners, occupiers, architects and builders of improvements to real property, who are covered by
the statute. NRS 11.202-11.206; U.S.C.A.Const. Amend. 14.
2. Limitation of Actions.
Statutes of repose bar causes of action after a certain period of time, regardless of whether damage or
an injury has been discovered; in contrast, "statutes of limitation" foreclose suits after a
fixed period of time following occurrence or discovery of an injury.
104 Nev. 772, 773 (1988) Allstate Ins. Co. v. Furgerson
contrast, statutes of limitation foreclose suits after a fixed period of time following occurrence or
discovery of an injury. NRS 11.204.
3. Constitutional Law; Limitation of Actions.
Statute of repose with respect to suits against contractors and others for latent defects could not be
applied to latent defect discovered before the enactment of the statute; retrospective application of the
current statute would violate due process. NRS 11.203-11.205; U.S.C.A.Const. Amend 14.
4. Limitation of Actions.
Date of substantial completion of house, and not the date when the insurer paid owner for repair of latent
defect, determined when insurer's subrogated cause of action against contractor accrued for purposes of
determining whether statute of repose was in effect at time when injury occurred. NRS 11.204.
OPINION
Per Curiam:
Between December 1974 and March 1975, Phillip Angst contracted with respondent Edd
Furgerson, a local builder, to construct a home on Angst's property in Carson City. The
Angsts moved into their new home on August 26, 1975. Over the next two months, Furgerson
returned to complete little piddly things that still needed work.
During the summer of 1976 and early 1977, Angst noticed some cracks in the sheetrock in
several rooms. He initially attributed the cracks to settling, but became concerned when
they began to widen in 1979 and 1980.
Furgerson examined the house in August 1982, and told Angst that there was a structural
problem. Shortly afterward, Furgerson asked a structural engineer to look at the home, and
the engineer agreed that a deflecting truss was bearing down on the sheetrock, causing it to
crack. During the winter of 1982-1983, the cracks grew wider, and depressions developed in
the roof.
Angst carried a homeowners' insurance policy with appellant Allstate. He contacted
Allstate in March 1983, and the company retained an engineer to inspect the house. Allstate's
engineer determined that construction errors caused the structural problems.
In 1985, Allstate paid over $67,000 to repair the Angst's home. On September 13, 1985,
Allstate exercised its right of subrogation and sued Furgerson for breach of contract, breach
of warranty, negligence, strict liability, and false representations. On August 6, 1987,
Furgerson moved for summary judgment, contending that the eight-year statute of repose
provided by NRS 11.204 barred Allstate's claim. The district court granted Furgerson's
motion, and Allstate appeals.
104 Nev. 772, 774 (1988) Allstate Ins. Co. v. Furgerson
EQUAL PROTECTION
[Headnotes 1, 2]
In its order granting summary judgment, the district court concluded that NRS 11.2041
applies to this cause of action. This statute provides owners, occupiers, designers, and
builders of improvements to real property with immunity from liability for latent defects once
eight years pass after the substantial completion of the project.
Allstate argues that NRS 11.204 violates the equal protection clause of the Fourteenth
Amendment to the United States Constitution. Specifically, Allstate contends that the statute
arbitrarily grants immunity from suit after eight years to owners, occupiers, architects, and
builders, while suppliers of materials enjoy no such immunity.
Allstate cites State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983), as support
for its proposition. In All Electric, this court struck down former NRS 11.205, which
insulated architects and contractors from liability for patent defects after six years had passed
following completion of the project. Id. at 226, 660 P.2d at 998. The statute gave no similar
protection to owners or occupiers of land, or to material suppliers. Id. at 225, 660 P.2d at
997-998.
____________________

1
NRS 11.204 provides:
Actions for damages for injury or wrongful death caused by deficiency in construction of
improvements to real property: Latent deficiencies.
1. Except as otherwise provided in NRS 11.202 and 11.203, no action may be commenced against
the owner, occupier or any person performing or furnishing the design, planning, supervision or
observation of construction, or the construction, of an improvement to real property more than 8 years
after the substantial completion of such an improvement, for the recovery of damages for:
(a) Any latent deficiency in the design, planning, supervision or observation of construction or the
construction of such an improvement;
(b) Injury to real or personal property caused by any such deficiency; or
(c) Injury to or the wrongful death of a person caused by any such deficiency.
2. Notwithstanding the provisions of NRS 11.190 and subsection 1 of this section, where injury
occurs in the eighth year after the substantial completion of such an improvement, an action for damages
for injury to property or person, damages for wrongful death resulting from such injury or damages for
breach of contract may be commenced within 2 years after the date of such injury, irrespective of the date
of death, but in no event may an action be commenced more than 10 years after the substantial
completion of the improvement.
3. For the purposes of this section, latent deficiency means a deficiency which is not apparent by
reasonable inspection.
104 Nev. 772, 775 (1988) Allstate Ins. Co. v. Furgerson
There existed no rational basis for drawing a distinction between architects and contractors
as opposed to owners and manufacturers. Id. at 228, 660 P.2d at 999. Therefore, the former
NRS 11.205 violated the equal protection clause by arbitrarily granting immunity to one
group while denying it to another. Id. at 228, 660 P.2d at 999.
In response to the All Electric decision, the Nevada legislature revised its statutes of
repose.
2
(NRS 11.202-206.) The amended NRS 11.204 now grants immunity to owners and
occupiers of real property. However, the law continues to deny immunity to material
suppliers. In this case, Allstate argues that, for the reasons stated in All Electric, the new
version of NRS 11.204 also violates the Fourteenth Amendment's equal protection clause.
However, in Wise v. Bechtel, 104 Nev. 750, 766 P.2d 1317 (1988),
3
we upheld the
constitutionality of revised NRS 11.204.
Materials are products, and in 1983, the legislature enacted a statute which
specifically denied the immunity defenses provided by NRS 11.203-205 in cases when
the injury was due to a defective product.
4
Since our legal system has a well-developed
body of products liability law, there exists a rational basis for distinguishing between
owners, occupiers, architects and builders of improvements to real property, as opposed
to manufacturers and material suppliers. Therefore, . . . the current version of NRS
11.204 does not violate the equal protection clause.
Id. at 753-54, 766 P.2d at 1317.
____________________

2
Statutes of repose bar causes of action after a certain period of time, regardless of whether damage or an
injury has been discovered. In contrast, statutes of limitation foreclose suits after a fixed period of time
following occurrence or discovery of an injury.

3
In Bechtel, two employees of the Mohave Generating Station sued Bechtel Corporation, (the plant's
builder), for injuries suffered in a 1985 accident at the power plant. Bechtel moved for partial summary
judgment, contending that more than eight years had passed since substantial completion of the facility, thereby
barring the suit under NRS 11.204. The employees and two other defendants, who were material suppliers
during the plant's construction, opposed the motion and (like Allstate in the instant case) asserted that the revised
NRS 11.204 was unconstitutional.

4
NRS 11.206 provides:
Actions for damages for injury or wrongful death caused by deficiency in construction of
improvements to real property: Limitation of actions not a defense in actions based on liability as
innkeeper or for defect in product. The limitations respectively prescribed by NRS 11.203, 11.204 and
11.205 are not a defense in an action brought against:
. . . .
2. Any person on account of a defect in a product.
104 Nev. 772, 776 (1988) Allstate Ins. Co. v. Furgerson
RETROACTIVE APPLICATION
[Headnote 3]
Allstate argues that even if revised NRS 11.204 is constitutional, it cannot bar this action.
Phillip Angst's home was substantially completed in 1975, and the latent structural defect was
evident to both Angst and Furgerson in 1982. However, this court declared the old statutes of
repose to be unconstitutional in State Farm v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995
(1983). The legislature subsequently enacted the current versions of NRS 11.203-11.205 in
1983. Therefore, Allstate argues that there was essentially no statute of repose in effect when
the latent defect in Angst's home was discovered, and that retroactive application of the
current NRS 11.204 would violate due process of law.
We agree. Courts will not apply statutes retrospectively unless the statute clearly expresses
a legislative intent that they do so. Travelers Hotel v. City of Reno, 103 Nev. 343, 346, 741
P.2d 1353, 1355 (1987). No language exists in NRS 11.204 or in the other statutes of repose
directing that these laws be applied retrospectively. Furthermore, nothing in the legislative
history indicates a legislative intent other than prospective application. Thus, Allstate
correctly contends that NRS 11.204 cannot be retrospectively applied to the construction error
at issue in this case.
Furgerson argues that retrospective application of NRS 11.204 is unnecessary in the
instant case. He contends that since Allstate paid for the repairs in 1985, that was the date of
the [i]njury to real or personal property caused by the construction defect. NRS
11.204(1)(b). Therefore, Furgerson concludes that NRS 11.204 can be prospectively applied
in the instant case because Angst's home was repaired in 1985, after enactment of the statute.
However, NRS 11.204 bars recovery of damages for [a]ny latent deficiency in the design,
planning, supervision or observation of construction or the construction of . . . an
improvement to real property more than eight years after substantial completion of the
project. NRS 11.204(1)(a). The latent structural defect at issue in this case apparently existed
upon completion of the home in 1975, and was evident to both Angst and Furgerson by 1982.
Thus, this cause of action accrued before the effective date of the revised NRS 11.204. We
cannot apply the amended statute of repose retroactively to bar suits by persons injured before
the effective date of the new law but who failed to commence an action until after the date of
the amendment. Hunter v. School District of Gale-Ettrick, 293 N.W.2d 515, 521-522 (Wis.
1980). Therefore, in this case, although the statute is constitutional, NRS 11.204 cannot be
applied retroactively to bar Allstate's cause of action.
104 Nev. 772, 777 (1988) Allstate Ins. Co. v. Furgerson
NRS 11.204 cannot be applied retroactively to bar Allstate's cause of action.
Accordingly, we reverse the district court's order granting summary judgment.
5

____________________

5
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 777, 777 (1988) Wickliffe v. Sunrise Hospital
PATRICIA A. WICKLIFFE, as Special Administratrix of the Estate of ANGELA R.
WICKLIFFE, Deceased, Appellant, v. SUNRISE HOSPITAL, INC., a Nevada Corporation,
Respondent.
No. 18737
December 30, 1988 766 P.2d 1322
Appeal from a judgment in a wrongful death action. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Parents sued hospital for wrongful death of teenage daughter who suffered respiratory
arrest while recovering from surgery. The district court rendered judgment for hospital, and
parents appealed. The Supreme Court, 101 Nev. 542, 706 P.2d 1383, reversed and remanded.
On remand, the district court again entered judgment in favor of hospital, and parents again
appealed. The Supreme Court held that: (1) trial judge violated law of case by demeaning
credibility and expertise of plaintiff's expert witness, and (2) failure to give requested
instruction permitting jury to consider whether hospital conformed to its own standards in
caring for patient after surgery was reversible error.
Reversed and remanded.
[Rehearing denied March 8, 1989]
J. R. Crockett, Jr. and James Lavelle, Las Vegas, for Appellant.
Barker, Gillock, Koning, Brown & Earley, Las Vegas, for Respondent.
1. Evidence.
In absence of admission or waiver by adverse party, court should expressly find that witness is qualified
as expert.
2. Appeal and Error.
On remand from Supreme Court decision directing trial judge to admit expert witness' testimony in
medical malpractice action, trial judge's remarks demeaning credibility and expertise of witness by
referring her as a "so called expert" violated law of the case and constituted
reversible error.
104 Nev. 777, 778 (1988) Wickliffe v. Sunrise Hospital
referring her as a so called expert violated law of the case and constituted reversible error.
3. Appeal and Error.
When appellate court states principle or rule of law necessary to a decision, principle or rule becomes law
of the case and must be followed throughout its subsequent progress, both in lower court and upon
subsequent appeal.
4. Appeal and Error.
On remand from Supreme Court decision making certain hospital records admissible in medical
malpractice action, prohibiting patient's counsel to make inferences as to why hospital treated those records
differently than remainder of patient's records violated law of case and was reversible error.
5. Appeal and Error; Hospitals.
Failure to give requested instruction permitting jury to consider whether hospital conformed to its own
standards in caring for patient after surgery was reversible error in medical malpractice action arising from
patient's death; evidence indicated that hospital's procedure for postoperative care conformed to national
standards, but that hospital's personnel did not perform consistently with those standards.
6. Appeal and Error.
On remand from Supreme Court decision requiring trial court to apply nationwide standard of care in
determining hospital's negligence in medical malpractice action, permitting expert to testify that standards
of nursing care differed from community to community did not violate law of case, since circumstances
under which hospitals function vary significantly.
OPINION
Per Curiam:
At 7:40 a.m. on December 7, 1978, Angela Wickliffe, a healthy thirteen-year-old,
underwent an operation at Sunrise Hospital to correct the curvature or scoliosis of her spine.
The operation was uneventful and successful. At approximately 12:30 p.m., Angela suffered a
respiratory arrest. Despite the efforts of the hospital staff to revive her, Angela never regained
consciousness. She died from brain damage resulting from a lack of oxygen on December 19,
1978.
Patricia and John Wickliffe filed suit against Sunrise for the wrongful death of their
daughter. The Wickliffes alleged negligence of the hospital's nursing staff who cared for
Angela following her surgery.
As this case reaches us for a second time, a complete summary of the facts is available in
Wickliffe v. Sunrise Hospital, 101 Nev. 542, 706 P.2d 1383 (1985) (Wickliffe I). After a jury
verdict in favor of Sunrise Hospital in the first medical malpractice action, Patricia Wickliffe
appealed to this court. We reversed and remanded the case for a new trial, with express
instructions for the district court. Id., 706 P.2d at 1383.
104 Nev. 777, 779 (1988) Wickliffe v. Sunrise Hospital
Specifically, we ordered the district court to apply a national standard of hospital care at
the second trial. Wickliffe, 101 Nev. at 548, 706 P.2d at 1388. Accordingly, we directed the
trial judge to admit the testimony of Carolyn Sandler, Wickliffe's expert witness on national
hospital standards. Id., 706 P.2d at 1388. Furthermore, we ordered the district court to admit
the testimony of former Sunrise nursing supervisor Marjorie Woods, as well as Wickliffe's
exhibits 12 and 13, all excluded at the first trial. Wickliffe, 101 Nev. at 549-550, 706 P.2d at
1388-1389.
After a second trial, a jury again found for Sunrise, and again Wickliffe appeals. She
contends that the district court erred by not adhering to the law of the case during the second
proceeding. We agree, and again reverse and remand for a new trial.
Wickliffe argues that the district court erred when, during the second trial, it refused to
properly qualify nurse Carolyn Sandler as an expert witness. In Wickliffe I, this court
reviewed Ms. Sandler's qualifications and found her qualified as an expert to state an opinion
as to the national standard of nursing care. Wickliffe, 101 Nev. at 546-548, 706 P.2d at
1386-1388. We held that Ms. Sandler could testify upon remand. Wickliffe, 101 Nev. at 548,
706 P.2d at 1388. Thus, Wickliffe argues that the lower court violated the law of the case by
failing to properly qualify Ms. Sandler.
However, the record on appeal indicates that the district court initially qualified Ms.
Sandler as an expert witness. After Wickliffe laid a foundation for her testimony, the court
held that [i]t's obvious that there are some infirmities but I think that those merely go to the
weight rather than admissibility counsel. I think there is a sufficient foundation.
Wickliffe specifically objects to the trial judge's subsequent comments to the jury
regarding expert witnesses in general. The judge referred to the parties' experts as these
so-called experts.'
1
[Headnote 1]
[Headnote 1]
____________________

1
After he overruled Sunrise's objection to Ms. Sandler's testimony for lack of foundation, the judge told the
jury that:
I'm going to instruct you as to the so-called experts that you'll be listening to and the rule will be in the
end that you're to determine whether they're experts. I don't determine that fact. The only thing I
determine is just is there sufficient foundation to get over, that they have a little bit more knowledge than
someone else and then it's up to you to determine whether or not you will or will not consider them an
expert, that's up to you. And you're gonna be comparing so-called expert testimony, so that's why I asked
you to pay specific attention to the witnesses when they come forward, cause you're gonna have to make
that determination. But I'll give you the appropriate . . . statutory charge on how to view expert
testimony, you may not think that they're experts but that's up to you, it's you're [sic] determination. I'm
104 Nev. 777, 780 (1988) Wickliffe v. Sunrise Hospital
[Headnote 1]
Wickliffe argues that the judge's comments indicate that the district court never actually
qualified Ms. Sandler as an expert. Sunrise responds that by permitting witnesses to testify as
experts, the trial judge, by inference, rules that they are qualified. Grohusky v. Atlas
Assurance Company, 408 P.2d 697, 701 (Kan. 1965). However, in the absence of an
admission or waiver by the adverse party, courts should expressly find that the witness is
qualified. Pridgen v. Gibson, 139 S.E. 443, 444 (N.C. 1927).
[Headnote 2]
In the instant case, rather than expressly finding Ms. Sandler qualified, the district court
subverted this court's direction on remand. The trial judge's remarks demeaned the credibility
and expertise of plaintiff's expert witness, and thereby undermined the mandate of Wickliffe I
which ordered the district court to admit Ms. Sandler's expert testimony.
[Headnote 3]
When an appellate court states a principle or rule of law necessary to a decision, the
principle or rule becomes the law of the case and must be followed throughout its subsequent
progress, both in the lower court and upon subsequent appeal. LaBue v. State ex rel. Dep't
Hwys., 92 Nev. 529, 532, 554 P.2d 258, 260 (1976). Upon remand, the lower court can take
only such actions as conform to the judgment of the appellate tribunal. Id., 554 P.2d at 260.
Therefore, in this dispute, the district court's remarks violated the law of the case and
constituted reversible error. Id., 554 P.2d at 260.
[Headnote 4]
In Wickliffe I, we held that the district court abused its discretion at the first trial by
excluding Wickliffe's exhibits 12 and 13. 101 Nev. at 549-550, 706 P.2d at 1389. Exhibit 12
was a photocopy of Angela Wickliffe's hospital records except for pages 114 and 123.
Sunrise's custodian of records mailed the pages comprising exhibit 12 on December 18, 1978,
pursuant to a subpoena received that day. Id., 706 P.2d at 1389.
Exhibit 13 consisted of pages 114 and 123. The hospital mailed these pages on December
19, 1978, pursuant to the same subpoena. Pages 114 and 123 were the only pages in Angela's
records concerning her brief stay on the surgical floor following her surgery.
____________________
not saying that they are or they're not, but they are entitled to go ahead and to give you certain opinions
and then you can either take em at their value or whatever value you believe they may be; you may
disregard em if you don't think that they're worth anything or you may regard em if you do, but that's,
that's your prerogative and I don't want you to get the impression that by allowing these experts to
testimony [sic]that you're bound to follow their testimony.
104 Nev. 777, 781 (1988) Wickliffe v. Sunrise Hospital
records concerning her brief stay on the surgical floor following her surgery. These pages,
which overlap in time, record the events surrounding Angela's respiratory arrest. The record
does not reveal where pages 114 and 123 were on December 18, or why they were not mailed
along with the remainder of Angela's records. Id., 706 P.2d at 1389.
Wickliffe sought to admit exhibits 12 and 13 in order to bring to the jury's attention
questions about how Sunrise processed Angela's records. On remand, we ordered the district
court to admit them. Wickliffe, 101 Nev. at 550, 706 P.2d at 1389.
Accordingly, at the second trial, the district court admitted exhibits 12 and 13. During his
closing argument, Wickliffe's counsel attempted to make inferences as to why Sunrise treated
pages 114 and 123 differently than the remainder of Angela's records. However, upon
Sunrise's objection, the district court ordered counsel to avoid that subject.
Wickliffe argues that the district court's order violated the law of Wickliffe I. In that
decision, we noted that
[T]he fact that pages 114 and 123 were separated from the rest of her hospital records
suggests that the two most important pages were somehow treated differently.
Inferences arising from these facts were highly relevant. The jury should have been
allowed to consider them when evaluating the contents of pages 114 and 123. Wickliffe,
101 Nev. at 550, 706 P.2d at 1389.
Thus, Wickliffe contends that the district court's refusal to allow counsel to argue these
inferences contravened the law of the case. We agree. Sunrise argues that the district court
properly limited Wickliffe's closing argument because the evidence presented at trial did not
support counsel's inferences. Courts will ban closing arguments which go beyond the
inferences the evidence in the case will bear. P. Rothstein, Evidence, State and Federal Rules
39 (1981). However, in Wickliffe I, we held that inferences arising from exhibits 12 and 13
were highly relevant. 101 Nev. at 550, 706 P.2d at 1389. Therefore, upon remand, Wickliffe's
evidence supported the inferences which counsel tried to make during his closing argument.
Sunrise also argues that even if the district court erred, it was a harmless error which had
no bearing on the outcome of the trial. However, a trial court has no authority to deviate from
the mandate issued by an appellate court. Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306
(1948). Proceedings contrary to the mandate are null and void, and failure to conform to the
ruling justifies a new review. Id. The appellate court may enforce compliance with its
mandate which the trial court has failed to obey, or has miconstrued. B. & O. R. CO. v.
104 Nev. 777, 782 (1988) Wickliffe v. Sunrise Hospital
obey, or has miconstrued. B. & O. R. CO. v. United States, 279 U.S. 781, 785 (1929).
Moreover, consideration of the inferences advanced by Wickliffe's counsel might have had
an impact on the jury's decision. Therefore, the district court's restraint on counsel's argument
was prejudicial error and warrants reversal.
[Headnote 5]
At the first trial, the district court gave Wickliffe's jury instruction 13B which provided:
In determining the adequacy of the care rendered to its patient, you may consider the
defendant's own standards and whether or not the defendant conformed to its own standards.
At the conclusion of the second trial, the court refused the same instruction when profferred
by the plaintiff.
Sunrise maintained its postoperative procedures in a rolodex available for review on each
ward of the hospital. The pertinent rolodex card required the taking of vital signs every fifteen
minutes for the first hour after a patient's surgery. Wickliffe contends that the omitted
instruction was fundamental to her argument that the violation of Sunrise's procedure could
be evidence of negligence. Therefore, she argues that the court's refusal to give the instruction
was reversible error.
We agree. Each party to a lawsuit is entitled to have the jury instructed on all of his
theories of the case that are supported by the pleadings and the evidence. Rocky Mt. Produce
v. Johnson, 78 Nev. 44, 52, 369 P.2d 198, 202 (1962).
Sunrise was accredited by the Joint Commission on Accreditation of Hospitals (JCAH)
which institutes national standards to which all hospitals seeking accreditation must conform.
Wickliffe, 101 Nev. at 548, 706 P.2d at 1387. According to Ms. Sandler's testimony, the
national standard of nursing care in 1978 required that a nurse observe a postoperative patient
and take the patient's vital signs every fifteen minutes for the first hour the patient is back on
the surgical floor.
Ms. Sandler noted that exhibit 2B (Sunrise's rolodex cards containing postoperative care
procedures) represented an adequate standard of postoperative care. However, she observed
that since a nurse's aide monitored Angela Wickliffe's vital signs only once during her first
hour after leaving the recovery room, the nurses involved failed to meet that standard.
Thus, the evidence indicated that Sunrise's procedures for postoperative care conformed to
the national standard, but the hospital's personnel did not perform consistently with that
standard. Therefore, Wickliffe was entitled to a jury instruction stating that the jurors could
consider whether or not Sunrise conformed to its own standards. Accordingly, the district
court erred by refusing to give instruction 13B.
104 Nev. 777, 783 (1988) Wickliffe v. Sunrise Hospital
In Wickliffe I, we noted that [i]t is no longer justifiable, if indeed it ever was, to limit a
hospital's liability to that degree of care which is customarily practiced in its own
community. Wickliffe, 101 Nev. at 548, 706 P.2d at 1388 (quoting Dickinson v. Maillard,
175 N.W.2d 588, 596 (Iowa 1970)). Today, Nevada hospitals must conform to a nationwide
standard: that degree of skill and care expected of a reasonably competent hospital in the
same or similar circumstances. Id., 706 P.2d at 1388.
[Headnote 6]
Nevertheless, upon remand, Sunrise called nurse Doris Ravish to provide expert testimony
on its behalf. During direct examination, Ms. Ravish testified that standards of nursing care
differ from community to community. Wickliffe argues that because Ms. Ravish's testimony
contradicts the law of Wickliffe I, the district court erred by allowing her testimony.
We disagree. In Wickliffe I, we did no intend to suggest that the quality of hospital and
nursing care available to the public will never differ from one community to the next. Rather,
we explained that we will hold hospitals liable, not to their local community standard of care,
but to the standard of care available in a competent hospital operating under similar
circumstances. We recognize that the circumstances under which our hospitals function may
vary significantly. Therefore, Ms. Ravish's testimony did not contradict the law of Wickliffe I.
2

Finally, Wickliffe argues that whether consciously or unconsciously, the trial court judge
undermined plaintiff's case and cannot fairly deal with the matters involved. Therefore, she
argues that we should remand the case to a different court for any further proceedings. We
agree, and direct that on remand, the case shall be assigned to a different district court judge.
Nev. Const. art. 6, 19(1).
In light of our disposition, we need not reach appellant's remaining contentions.
Accordingly, we reverse the district court's judgment and remand the case for a new trial.
3

____________________

2
We note that the district court attempted to resolve possible confusion as to the applicable standard of care
via its jury instructions. The trial judge informed the jury that hospitals must employ that degree of skill and care
expected of a reasonably competent hospital in the same or similar circumstances. He emphasized that every
hospital's level of care must conform to this national standard. Moreover, the district court instructed the jury
that nurses must exercise that degree of skill and care possessed by ordinarily careful and skillful nurses at the
same time and under similar circumstances. These instructions corresponded to the standards defined in Wickliffe
I. Wickliffe, 101 Nev. at 548, 706 P.2d at 1388. Upon remand, we direct the district court to give these same
instructions to the jury.

3
The Honorable E. M. Gunderson, Chief Justice, did not participate in the decision of this appeal.
____________
104 Nev. 784, 784 (1988) In re Petition to Recall Dunleavy
In the Matter of the PETITION to RECALL PHILIP H. DUNLEAVY From the Office of
District Attorney of Nye County, Nevada.
No. 19510
December 29, 1988 769 P.2d 1271
Motions to recuse or disqualify Supreme Court Justice and to vacate an administrative
order of Supreme Court.
Supreme Court justice filed order designating a district judge to preside over habeas
corpus proceedings brought by a county sheriff with respect to criminal charges lodged by a
district attorney. The Supreme Court had previously assigned the same judge to preside over
petition for recall of that district attorney. District attorney filed original motion with
Supreme Court seeking a vacation of order with respect to habeas corpus proceedings and
disqualifications of Supreme Court justice from court's review of related proceedings. The
Supreme Court held that: (1) the order was valid, and (2) disqualification of Supreme Court
justice was not required.
Motions denied.
Peter L. Flangas, Las Vegas, for Petitioner.
Philip H. Dunleavy, District Attorney, Nye County, for Movant.
1. Appeal and Error.
Rehearing of prior determination of Supreme Court is warranted only when Court has overlooked or
misapprehended a material matter or in such other circumstances as will promote substantial justice.
NRAP 40(c)(2)(i),(ii).
2. Courts.
Action of Supreme Court acting chief justice, in designating judge, who was reviewing validity of
petition seeking district attorney's recall from office, to also preside over habeas corpus proceedings in
which sheriff had challenged certain criminal charges instituted against him by the same district attorney,
was supported by constitutional provision designating chief justice as administrative head of court system
and empowering him to assign district judges to assist in other districts. Const. Art. 6, 19, subd. 1(b).
3. Courts.
Supreme Court acting chief justice's issuance of an order designating district judge to preside over habeas
corpus proceeding, brought by sheriff against district attorney who was charging sheriff with crimes, was
not invalid because district attorney was not given opportunity to address alleged insufficiency of sheriff's
petition, as order was based on considerations of judicial economy, allegations of bias and prejudice played
no part in that determination, and there was no allegation that appointment of judge would in any manner
prejudice administration of justice or litigants. NRS 1.235, subd. 5(b).
104 Nev. 784, 785 (1988) In re Petition to Recall Dunleavy
4. Motions.
Procedural rule contemplates requests for relief from Supreme Court be presented in formal motion, not
through an informal letter addressed to clerk. NRAP 27(a).
5. Judges.
Supreme Court acting chief justice was not precluded from sitting in any matter involving a district
attorney, sheriff or his attorney, based on justice's issuance of order assigning judge from another judicial
district to preside over matters involving those parties or fact that sheriff's attorney contributed to justice's
election campaign some years previously.
6. Judges.
Allegation of judge's bias in favor or against an attorney for a litigant generally states an insufficient
ground for disqualification because it is not indicative of extrajudicial bias against a party.
OPINION
Per Curiam:
1

On November 1, 1988, the Honorable William P. Beko, district judge of the Fifth Judicial
District Court, submitted to this court a Notice of Filing of Peremptory Challenge of District
Judge and Request for Instructions or Assignment. See SCR 48. The peremptory challenge to
Judge Beko had been tendered below in proceedings before the district court concerning a
petition to recall the District Attorney of Nye County, Philip H. Dunleavy. On November 10,
1988, this court issued an administrative order assigning the Honorable Thomas L.
Stringfield, a judge of the Fourth Judicial District Court, to preside over those proceedings.
Judge Stringfield subsequently entered an order approving the validity of the petition seeking
Dunleavy's recall from office. Dunleavy has challenged that order in this court by way of a
petition for extraordinary relief in Docket No. 19581 and by way of a purported appeal in
Docket No. 19620.
On November 10, 1988, Sheriff Harold A. Davis filed in this court a petition for
supplemental relief requesting this court to assign Judge Stringfield to preside over another
matter pending in the Fifth Judicial District Court related to the above-mentioned civil
proceedings. Specifically, in the interests of judicial economy and expediency, Davis
requested the assignment of Judge Stringfield to preside over habeas corpus proceedings
below in which Davis has challenged certain criminal charges instituted against him by
Dunleavy. Because the matters were related, and because it would promote the efficient
administration of justice, Justice Cliff Young, in his capacity as acting chief justice, issued
a supplemental administrative order in Docket No.
____________________

1
These motions were previously denied in an unpublished order of this court. Pursuant to a request, we have
determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion
in place of our unpublished order filed December 29, 1988.
104 Nev. 784, 786 (1988) In re Petition to Recall Dunleavy
because it would promote the efficient administration of justice, Justice Cliff Young, in his
capacity as acting chief justice, issued a supplemental administrative order in Docket No.
19510 on December 14, 1988, granting Davis' request and assigning Judge Stringfield to
preside over those proceedings as well. See Nev. Const. art. 6, 19(1)(b). On December 21,
1988, District Attorney Dunleavy filed a motion with this court seeking the recusal or
disqualification of Justice Young from this court's review of the above-mentioned
proceedings. Additionally, Dunleavy requests us to vacate the above-mentioned
administrative order entered in Docket No. 19510. As set forth below, we hereby deny Mr.
Dunleavy's motion.
I. THE MOTION TO VACATE ADMINISTRATIVE ORDER
[Headnote 1]
Mr. Dunleavy's motion to vacate is, in essence, a motion requesting reconsideration of this
court's administrative order of December 14, 1988. See NRAP 40. Rehearing of a prior
determination of this court is warranted only when the court has overlooked or
misapprehended a material matter or [i]n such other circumstances as will promote
substantial justice. NRAP 40(c)(2)(i) and (ii). Mr. Dunleavy's motion establishes neither of
these essential prerequisites.
[Headnote 2]
Mr. Dunleavy first complains that no authority exists in support of this court's
administrative action. To the contrary, however, the challenged order specifically cited
Article 6, 19(1)(b) of the Nevada Constitution, which by designating the chief justice as the
administrative head of the court system and empowering the chief justice to [a]ssign
district judges to assist in other judicial districts, clearly implies inherent power to take
actions reasonably necessary to administer justice efficiently, fairly, and economically, See,
e.g., Goldman v. Bryan, 104 Nev. 644, 654 n. 7, 764 P.2d 1296 (1988). Here, Sheriff Davis
tendered considerations relating to the efficient and economical administration of justice
within the Fifth Judicial District. Upon a determination that those considerations alone
justified such action, Acting Chief Justice Young issued the order assigning Judge
Stringfield, who had previously been assigned to preside over related civil litigation, to
preside as well over proceedings concerned with the sheriff's habeas corpus petition. That
determination was in no manner grounded upon allegations of bias or prejudice that had been
tendered against Judge Beko by Davis. The arguments set forth in the instant motion,
therefore, completely fail to address the administrative considerations upon which Justice
Young's determination was based. Consequently, far from establishing that this court
overlooked or misapprehended any material matters, the instant motion instead
demonstrates that Mr.
104 Nev. 784, 787 (1988) In re Petition to Recall Dunleavy
far from establishing that this court overlooked or misapprehended any material matters, the
instant motion instead demonstrates that Mr. Dunleavy has failed to discern the constitutional
basis underlying the order in issue.
[Headnote 3]
Second, Dunleavy alleges that because Justice Young provided neither him, nor Judge
Beko, an opportunity to address the alleged insufficiency of the sheriff's petition, the
administrative order was entered in violation of the procedures set forth in NRS 1.235(5)(b).
As noted above, however, the issuance of the administrative order was grounded upon
considerations of judicial economy and expediency, and the allegations of bias and prejudice
played no part in that determination. Further, to date, neither Mr. Dunleavy, nor Judge Beko,
has tendered to this court any suggestion that the assignment of Judge Stringfield would in
any manner prejudice the administration of justice or the litigants.
[Headnote 4]
Moreover, we view as insubstantial Mr. Dunleavy's further complaint that because this
court did not reply to his letter of November 16, 1988, we thereby denied his request for an
opportunity to respond to the sheriff's petition for supplemental relief. In fact, Mr.
Dunleavy's letter, directed to this court's clerk, merely indicated Dunleavy was in receipt of
the sheriff's petition and inquired whether:
the Supreme Court desires a responsive pleading to be filed by Philip H. Dunleavy,
District Attorney of Nye County, Nevada. If a response is desired, please indicate a
deadline by which the response is expected.
The letter neither requested an opportunity to respond, nor indicated that Dunleavy wished
to present any facts or argument impacting upon the administrative concerns that had been
tendered by Davis and which ultimately formed the basis of Justice Young's order. Further,
the letter presented no indication that Mr. Dunleavy either opposed the sheriff's petition or
that he would be prejudiced if this court granted the relief it requested. In any event, NRAP
27(a) contemplates that requests for relief from the court be presented in a formal motion, not
through an informal letter addressed to the clerk. Consequently, no reply to Dunleavy's letter
was deemed necessary by the court and, under the terms of the letter itself, the clerk of this
court quite properly declined to reply.
Under these circumstances, we conclude the instant motion fails to establish that this court
misapprehended or overlooked any material matters, and that the motion fails to demonstrate
any prejudice to Mr. Dunleavy's position arising out of Judge Stringfield's assignment to
preside over the proceedings below.
104 Nev. 784, 788 (1988) In re Petition to Recall Dunleavy
Stringfield's assignment to preside over the proceedings below. Accordingly, we deny the
request to vacate the order of December 14, 1988.
II. THE MOTION TO DISQUALIFY
The instant motion also requests the disqualification or voluntary recusal of Justice Young
from sitting in any capacity on any matter arising in the Fifth Judicial District Court . . .
involving Philip H. Dunleavy, District Attorney of Nye County, Nevada, the Honorable
Harold A. Davis, Sheriff of Nye County, Nevada, or Peter L. Flangas, Esq., Attorney for
Harold Davis. See NRS 1.225; Nev. Code of Judicial Conduct Canon 3. In the absence of
Justice Young's voluntary recusal, Dunleavy seeks a hearing upon his allegations charging
actual bias or the appearance of implied bias and impropriety. . . . See NRS 1.225(4).
Initially, we note that Justice Young has declined to voluntarily recuse himself from the
proceedings in question, concluding that no valid or compelling reason warrants such action.
As this court recently observed:
a judge has as great an obligation not to disqualify himself, when there is no occasion
to do so, as he has to do so in the presence of valid reasons. Amidon v. State, 604 P.2d
575, 577 (Alaska 1979), citing In Re Union Leader Corp., 292 F.2d 381, 391 (1st Cir.
1961), cert. denied, 368 U.S. 927. Thus, this court has previously held that a judge has
a duty to preside . . . in the absence of some statute, rule of court, ethical standard, or
other compelling reason to the contrary. See Ham v. District Court, 93 Nev. 409, 566
P.2d 420 (1977); see also United States v. Diorio, 451 F.2d 21, 24 (2d Cir. 1971), cert
denied, 405 U.S. 955 (1972); Woflson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968);
Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966). Moreover, where, as here, a
judge or justice determines that he may not voluntarily disqualify himself, his decision
should be given substantial weight, and should not be overturned in the absence of a
clear abuse of discretion. See United States v. Haldeman, 559 F.2d 31, 139 (D.C.Cir.
1976), cert. denied, 431 U.S. 933 (1977); Amidon, 604 P.2d at 577. Further, under these
circumstances, a judge or justice is presumed not to be biased, and the burden is on the
party asserting the challenge to establish sufficient factual grounds warranting
disqualification. Ritter v. Bd. of Com'rs of Adams County, Etc., 637 P.2d 940, 946
(Wash. 1981).
See Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296 (1988). As set forth below, we
concur with Justice Young's assessment that Dunleavy's motion alleges no legally
cognizable grounds whatsoever supporting a reasonable inference of actual or implied
bias under NRS 1.225 or the Nevada Code of Judicial Conduct.
104 Nev. 784, 789 (1988) In re Petition to Recall Dunleavy
assessment that Dunleavy's motion alleges no legally cognizable grounds whatsoever
supporting a reasonable inference of actual or implied bias under NRS 1.225 or the Nevada
Code of Judicial Conduct. Further, as the federal courts have analogously concluded, the
statutory provisions and mechanisms providing for a judge's disqualification are not activated,
and summary dismissal of the challenge is appropriate, where the challenge fails to allege
legally cognizable grounds supporting a reasonable inference of bias or prejudice. See Berger
v. United States, 255 U.S. 22 (1921); United States v. Haldeman, 559 F.2d 31, 129-31
(D.C.Cir. 1976), cert. denied 431 U.S. 933 (1977); United States v. Ming, 466 F.2d 1000,
1003-04 (7th Cir. 1972), cert. denied, 409 U.S. 915 (1972); Davis v. Board of School Com'rs
of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944; United
States v. Roca-Alvarez, 451 F.2d 843, 847-48 (5th Cir. 1971); United States v. Townsend,
478 F.2d 1072 (3rd Cir. 1973). Thus, for the reasons discussed below, we conclude that
summary dismissal of the instant challenge is warranted as a matter of law, and no formal
hearing is required.
In support of his challenge, Dunleavy avers that counsel for Sheriff Davis made a sizable
contribution to Justice Young's campaign for election to the Office of Supreme Court Justice.
Dunleavy asserts that the facts surrounding Justice Young's issuance of the aforementioned
administrative order, coupled with the substantial campaign contribution . . ., can only lead
to the conclusion, or at least the appearance, that Justice Young was repaying a political debt,
rather than sitting as an impartial jurist ruling on the basis of law. We disagree.
[Headnote 5]
First, as discussed above, the administrative order of December 14, 1988, was issued by
Justice Young in his capacity as acting chief justice upon the sole ground that such an
administrative action would promote the speedy, efficient and economical resolution of
matters pending in the Fifth Judicial District. Mr. Dunleavy has presented no facts or
arguments even remotely suggesting that the Nevada Constitution does not vest authority in
the acting chief justice to take such action, or that the considerations upon which that action
was grounded were insufficient to support Justice Young's administrative determination.
Thus, no facts surrounding the issuance of the administrative order have been alleged which
can support a reasonable inference of bias or prejudice in favor of or against any party to the
proceedings in question.
Moreover, rulings and actions of a judge during the course of official judicial proceedings
do not establish legally cognizable grounds for disqualification. See United States v. Board of
Sch.
104 Nev. 784, 790 (1988) In re Petition to Recall Dunleavy
Com'rs, Indianapolis, Ind., 503 F.2d 68, 81 (7th Cir. 1974), cert. denied, 439 U.S. 824. The
personal bias necessary to disqualify must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from his participation
in the case. United States v. Beneke, 449 F.2d 1259, 1260-61 (8th Cir. 1971) citing United
States v. Grinnell Corp., 384 U.S. 563, 583 (1966). To permit an allegation of bias, partially
founded upon a justice's performance of his constitutionally mandated responsibilities, to
disqualify that justice from discharging those duties would nullify the court's authority and
permit manipulation of justice, as well ss the court. See State v. Rome, 685 P.2d 290, 295-96
(Kan. 1984); see also Tynan v. United States, 376 F.2d 761 (D.C.Cir. 1967), cert. denied, 389
U.S. 845.
Second, intolerable results would also obtain if a litigant could disqualify a member of this
court solely because counsel for the litigant's adversary had years before contributed to the
justice's campaign. The citizens of this state have voted to retain an elected judiciary and the
Nevada Constitution specifically provides that the justices of this court shall be elected. See
Nev. Const. art. 6, 3. Moreover, Nevada Code of Judicial Conduct Canon 7B sets forth the
provisions governing campaigns for judicial office and expressly provides that a candidate for
such an office in this state may solicit funds for his campaign. Although the fact that Sheriff
Davis' counsel contributed to Justice Young's campaign years ago is a matter of public record,
Dunleavy tendered no challenge until Justice Young had entered his ruling on Davis' motion.
If the mere fact that an attorney had contributed to a judge's campaign constituted a
reasonable ground for the subsequent disqualification of that judge upon a challenge made
after the judge has ruled on the merits of a motion, the conduct of judicial business in the
courts of this state would be severely and intolerably obstructed.
[Headnote 6]
Third, an allegation of bias in favor or against an attorney for a litigant generally states an
insufficient ground for disqualification because it is not indicative of extrajudicial bias
against a party.' See Gilbert v. City of Little Rock, Ark., 722 F.2d 1390, 1398-99 (8th Cir.
1983), cert. denied, 466 U.S. 972; see also Davis v. Board of School Com'rs of Mobile
County, 517 F.2d 1044, 1050 (5th Cir. 1975) (if party could successfully challenge a judge
based upon allegations of bias against party's attorney, it would bid fair to decimate the
bench and lawyers, once in a controversy with a judge, would have a license under which
the judge would serve at their will). In a small state such as Nevada, with a concomitantly
limited bar membership, it is inevitable that frequent interactions will occur between the
members of the bar and the judiciary.
104 Nev. 784, 791 (1988) In re Petition to Recall Dunleavy
inevitable that frequent interactions will occur between the members of the bar and the
judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice.
We conclude, therefore, that the instant motion states no legally cognizable ground
justifying Justice Young's disqualification, and that it is wholly insufficient, as a matter of
law, to warrant a formal hearing under NRS 1.225(4). Accordingly, we hereby summarily
deny the motion in its entirety.
2

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2
Neither Justice Young nor Justice Mowbray participated in this court's resolution of the instant motion.
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