VELD  LAW

Law Offices of Kristina Wildeveld
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5/27/2009   Charge dismissed against man arrested in girl's death
A Las Vegas justice of the peace on Thursday tossed out a murder charge against a man authorities alleged was responsible for a 2-year-old girl's death... Defense attorney Kristina Wildeveld said key testimony came from ...







8/13/2009 Juvenile Justice Matters Talk Radio Interview
Criminal Defense Attorney Kristina Wildeveld and Lee Rowland with the ACLU of Nevada join us on Juvenile Justice Matters to discuss a new law in Nevada that makes it harder to prosecute youth as adults.  The Campaign for Youth Justice is a national organization dedicated to ending the practice of trying, sentencing and incarcerating youth under the age of 18 in the adult criminal justice system.


 State Want s Colon's Daughters to Testify in Murder Case

Updated: March 30, 2006 09:21 PM

The state wants two little girls to testify against their father in a case that could result in the death penalty.

Marc Anthony Colon is charged with killing three-year-old Crystal Figueroa and tossing her body in a dumpster in January. Colon's daughters may be the only witnesses in the capital murder case.

Now an attorney representing those little girls is fighting attempts to put them on the stand, even at one point, standing up to a judge who threatened to have her jailed. Emotions ran high at the courthouse as Colon's relatives and his 8 and 9-year-old daughters broke down in tears.

When it came time for Colon's children to testify, the attorney for the children, Kristina Wildeveld objected. She cited a rarely used federal district court ruling that says children can't be ordered to testify against parents. Judge Stu Bell listened to her argument. He gave Wildeveld 30 minutes to file a stay in Carson City. If she couldn't do that and still objected, she says Bell threatened to throw her in jail.

Wildeveld says the girls are emotionally traumatized. According to Colon's defense attorney , police have already interviewed the children, but transcripts and tapes are not available.

Marc Anthony Colon's lawyer expressed his opinion on the matter. "I don't even know what they want to do with them, but put them through the stress and strain of a Grand Jury proceeding without having any real legitimate cause, ultimately, from what I understand, they're talking about potentially the death penalty, it seems sort of twisted," said David Figler, attorney for Colon.

Also on Thursday, a judge denied defense attorneys request to grant Colon bail. He is scheduled for a preliminary hearing on April 13 unless he is indicted by the Grand Jury. Gladys Perez, Crystal's mother, is also charged with her murder. She pleaded not guilty on Wednesday.












 

Losing his religion

Parolee Conan Pope's refusal to attend a Salvation Army program sends him back to prison

Conan Pope has waited 21 years for help. He didn't get it when he was being abused by his father. He didn't get it in the courtroom or in prison. And he certainly didn't get it when he was released.

"I just want this all to be over so badly," said Kristina Wildeveld, Pope's longtime attorney. "I just want him to be able to move on and get a chance in life. Every time he's disappointed by something or someone, it makes it harder for him to move on."

In January 2000, when he was 15 years old, Pope killed his father with a shotgun. He said he did it in self-defense and after several years of abuse. Eventually, he pleaded guilty to voluntary manslaughter and was sentenced to four to 15 years in prison.

In March 2006, Pope was paroled into the Salvation Army's adult rehabilitation program. He dropped out of the program about a month later, in part because of its religious component.

Pope could not be reached for comment. But on the May 12 edition of Face to Face with Jon Ralston, he said he had to attend church service and Bible study at the Salvation Army.

"I told my parole officer, I told everybody, that I did not want to go back to prison," said Pope. "I did not want to go back to the county jail. Can you please just put me in a different program or put me in a halfway house, so I can prove myself to society?"

Instead, Pope was put in the Clark County Detention Center on a parole violation.

"You have a situation where a condition of parole was attending religious services and Bible study -- and that's clearly a violation of the Constitution," said Allen Lichtenstein, general counsel of the ACLU of Nevada. "What they need to do is provide a program for his parole that does not require any religious involvement whatsoever. This is a problem that is not unique to Mr. Pope. If the Salvation Army is going to be used by the state to handle programs, they cannot make requiring someone to get involved in religious activities part of it."

Frank Richo, director of the Salvation Army's adult rehabilitation program, said religion isn't forced upon clients. He said there is a "spiritual" component to the program -- but clients can opt out of it. They just have to let us know, he said.

"It's not heavy at all," said Richo, when asked about the religious component. "What a lot of people confuse is religion and spirituality. We use the AA [Alcoholics Anonymous] model here, which has a spiritual component. You hear people mention 'a higher power,' but each individual decides what that higher power is and what it means to them. We don't say, 'You must be a Christian.' We have every religion and denomination coming through here. It's up to the individuals to decide all that."

Richo said church service and Bible study are mandatory parts of the program. But, he added, so are breakfast and lunch. It's a highly structured and disciplined program, he said. Everything's mandatory.

"We don't apologize for what our program is," said Richo. "But at the same time, we don't push it down people's throat."

Richo said before people enroll in the program, they are interviewed and assessed. Throughout the process, he said, the staff explains exactly who the Salvation Army is and what they are about.

"When an individual comes here," said Richo, "they have made a decision to be here. We don't go out and drag people in here and force them to be in the program."

Of course, parolees have very few options in Southern Nevada. Most prison-release programs don't accept parolees with violent pasts. Also, said Richo, many of the programs use the AA model.

"It has become more and more difficult over the years to find programs to help transition inmates," said David Smith, spokesman for the state parole board. "When somebody has a special need for some type of counseling, our options are becoming fewer and fewer."

In the meantime, Pope is in High Desert State Prison awaiting a June 1 parole hearing. The parole board will decide if he should remain in prison, be paroled to a halfway house or be released.

"I think Conan should be released," said Wildeveld. "I think he should be able to move on with his life and try to live as normal a life as possible, given the circumstances he has survived under."

Matt O'Brien is CityLife's news editor. He can be reached at 871-6780 ext. 350 or mobrien@lvcitylife.com.












Fri, Oct 31, 2008 (5:30 p.m.)

A Nebraska law meant to protect infants from being abandoned is causing an uproar nationwide. 22 children have been dropped off at state hospitals since the law went into effect, 12 of them teens. Should the law be redefined to protect only infants? And what's to become of teens who might otherwise end up on the streets? Jon talks with some experts who say parents are being forced to abandon their children in order to obtain the social services they need.

If Video player does not play press on the below links:

Part 1   http://www.lasvegassun.com/videos/2008/oct/31/1061/

Part 2   http://www.lasvegassun.com/videos/2008/oct/31/1062/

Part 3   http://www.lasvegassun.com/videos/2008/oct/31/1063/









 Eyes Wide Shut / Face to Face with Jon Ralston

Oldtimers remember Commercial Center as a place for wholesome pursuits - picking up a birthday cake in the bakery at Vegas Village, or some hardware (hammers and nails, not computer components) at Von Tobel's, skating the couples' song at the Ice Palace or devouring a pastrami on rye at Commercial Deli.

But on the east edge of Commercial Center, just beyond the very prim and proper folk at John Fish Jewelers, a seamier side of Las Vegas thrives, and has for years.

You've heard the names... the Fantasy Social Club, the Red Rooster Too and the World Famous Green Door... names provocative enough to arouse curiousity yet obscure enough to skate just under the county's radar.

Then along comes Sextasy. Is there any doubt what's on the menu at this establishment, which sought and was denied a restaurant license? Owner David Cooper admits Sextasy is a swingers' club, as is the Green Door - just check its website. Cooper even sought the same licenses as the Green Door and through the same attorney.

The nearby Hawks' Gym and Entourage are licensed as health clubs (though one application specifies "no weights") but in reality are gay bath houses.

Regardless of your moral judgment of such activities, citizens should be concerned about what appears to be selective vision on the part of county licensing, which turns a blind eye to almost all the illicit operations.

Cooper thinks his bad fortune can be traced to politically connected competitors and the county's desire to buy the building for a redevelopment project. We wanted to ask the county about the denial and how it can use taxpayer money to relocate illegal businesses, but no takers.

Hear from Cooper and his attorney, Kristina Wildeveld.


If Video player does not play press on the below links:

http://www.lasvegassun.com/videos/2008/jul/10/418/









 EDITORIAL: Is this a 'juvenile' crime?  Nevada's 'presumptive certification' law challenged

 

Nevada state law says juveniles 14 and older are presumed eligible for prosecution as adults if their alleged offense involved use of a deadly weapon.

Take the current Las Vegas cases involving William Molina and Marques Butler, both of whom were 17 at the time they were accused of robbery.

Molina, who professes his innocence, is charged with the 2006 armed robbery of a Las Vegas taco shop. Butler is charged with several crimes arising from the armed robbery of two men in a local park in 2006.

Both young men are represented by Las Vegas attorney Kristina Wildeveld, who has filed briefs that raise constitutional issues.

To stay out of adult court, state law allows juveniles to present evidence that emotional, behavioral or substance abuse problems led to the commission of their crimes.

(By definition, it would seem that committing an armed robbery is pretty good evidence of a "behavioral problem." But we'll leave a more detailed dissection of this psychological lingo for another day.)

Note what's missing from the list above. Juveniles accused of committing a crime with a deadly weapon cannot avoid trial in adult court -- where the penalties can be far more severe -- by arguing that they simply weren't there and didn't do it.

Molina, for instance, faces up to 36 years in prison if convicted as an adult. He would face far milder consequences in juvenile court.

In essence, the brief by Ms. Wildeveld argues, in order to undergo the psychological evaluations and other testing that might allow them to stay in juvenile court, her clients would have had to plead guilty.

When he pleaded "not guilty" to his charge, Williams was automatically transferred to adult court, the brief says.

What's more, once the determination has been made whether to prosecute in juvenile or adult court, any information presented while seeking to keep the case in juvenile court can be used against the youth in further proceedings -- a violation of due process rights, Ms. Wildeveld argues.

The Philadelphia-based Juvenile Law Center and the ACLU of Nevada have filed friend-of-the-court briefs, pointing out that in other states, information gathered during the evaluation process which decides whether to retain the case in juvenile court cannot be used in a subsequent prosecution.

Now, common sense has to ask, if the defendant didn't do it, why would he want a chance to argue he did it because of drugs or because his father beat him? Attorneys should not be urging innocent people to plead guilty just to get a better deal.

But Ms. Wildeveld and the "friends of the court" make a good point. To hold the threat of harsher punishment over a defendant's head in an effort to extract a de facto guilty plea comes very close to coercion in violation of the Fifth Amendment.

On the other hand, adult court is precisely where many such offenders belong. Much of our juvenile justice system comes down to us from the days when the typical offenses of "juvenile delinquents" involved theft of lawn ornaments or stealing apples from a fruit stand -- when it could sensibly be argued these were "good kids at heart" who might well be reformed by spending a few months on a farm, somewhere.

Few who have ever looked down the barrel of a loaded handgun brandished by a 17-year-old during an armed robbery would agree with Ms. Wildeveld that these are mere "children."

The plaintiffs have a point, even if they may not like the obvious two-part solution.

Yes, any information the defendant volunteers during the well-defined process of deciding court jurisdiction (but not, for instance, at the time of his arrest) should be confidential, to preserve the accused's vital Fifth Amendment rights.

But the Legislature also needs to considerably narrow any loopholes that allow armed 16- and 17-year-old thugs to avoid serious punishment for their serious crimes merely by pleading that they smoke dope or had a tough childhood.

People don't commit armed robbery by accident. Nor does it qualify as a "childhood prank."









 33-year-old convicted of lesser charge

The man accused of killing an employee of the all-nude Palomino Club was acquitted of first-degree murder charges but was convicted of conspiracy to commit murder.

The jury found 33-year-old Kenneth Counts not guilty of murdering Timothy Hadland, who was killed on May 19, 2005. The decision was reached Friday night.

"I thought we had an excellent jury that took the time to look at the evidence," said Bret Whipple, Counts' attorney. Counts also was represented by Kristina Wildeveld.

Prosecutor Giancarlo Pesci declined to comment on the verdict because the case is ongoing.

Authorities also have charged Deangelo Carroll, Luis Hidalgo III and Anabel Espindola in connection with Hadland's slaying.

Hadland, 44, was found shot to death on an isolated road near Lake Mead. Authorities said Hadland was killed because he bad-mouthed the Palomino Club and its owner to cabdrivers, thus making the club lose revenue.













 Lawyer questions sentence

LAS-VEGAS SUN, Wed, May 10, 2006 (7:26 a.m.)

Marcus Dixon is 22 years old and has spent more than one-third of his life behind bars.

Incarcerated for a crime he committed at age 14 - murder with a deadly weapon - Dixon is supposed to spend at least 40 years in prison.

Unless he gets lucky next month, when the Nevada Board of Pardons hears Dixon's request for a reduced sentence. The June 7 hearing will be at the state Supreme Court in Carson City.

Dixon fatally shot Daryl Crittenden outside a Las Vegas supermarket in May 1998. The 14-year-old murder defendant was offered and refused a plea bargain with a prison term of 10-25 years. He was tried as an adult and sentenced to two consecutive prison terms - one for a firearm's enhancement - of 20 years to life.

Dixon's attorney, Kristina Wildeveld, argues that the teenager was too young to appreciate what chain of events would unfold after the trigger was pulled. He was unable to conceive of spending even 10 years in jail at the time he was charged, and wrongly thought he could beat the charges. Had he been older, Wildeveld says, Dixon would have accepted the plea bargain.

"It is not buyer's remorse that makes Marcus now wish that he would have taken a deal nearly nine years ago. He realizes that he needed to pay for his mistakes. Marcus does not view himself as above the law nor that he should have escaped punishment," Wildeveld says in a petition for commutation of Dixon's sentence.

Wildeveld wants the sentence commuted to match the district attorney's initial offer - 10 to 25 years - or, at the very least, have the two sentences run concurrently for a total of 20 years.

The decision falls to the nine-member board, consisting of Nevada's governor, attorney general and Supreme Court justices. The board typically meets twice a year, and chose to review Dixon's case from more than 600 inmates requesting a June hearing, board program officer Shelly Williams said.

Board members will review a series of documents detailing Dixon's case and time served, including any certificates of accomplishment Dixon may have earned behind bars and a letter of input from the district attorney, Williams said. They may also hear from family members of Dixon and the victim.

The Clark County district attorney's office has not completed the board letter and is not yet prepared to discuss any stance on the possible shortening of Dixon's sentence, said Steve Owens, capital case coordinator for the district attorney's office.

It is likely, however, that the letter will address the issue of Dixon's age, to remind board members that it was well known to the judge and jury that convicted him, Owens said.

"We typically prefer to abide by the jury's verdict than have the Pardons Board step in years later," he said. "We believe pardons should be for extraordinary situations."













 Pardons Board reduces sentence

LAS-VEGAS SUN, Thu, Jun 8, 2006 (7:31 a.m.)

CARSON CITY - A 22-year-old Las Vegas man in prison for a murder committed when he was a teen learned Wednesday that he will not have to wait until he is middle-aged to have a chance to get out from behind bars.

By an 8-1 vote Wednesday, the state Pardons Board reduced Marcus Dixon's sentence for the 1998 fatal shooting of Daryl Crittenden from 40 years to life to a minimum of 15 years.

The sentence reduction means that Dixon, who was ineligible for parole until he was 54, will be able to appear before the state Parole Board after serving another seven years on top of the nearly eight he has already served.

Justice Bob Rose said that lowering the minimum sentence to 15 years means that Dixon probably will serve 20 years. Inmates normally are denied parole the first time they seek it, he noted.

Attorney General George Chanos cast the lone dissenting vote, arguing that Dixon should be treated as an adult because of the nature of the offense.

The Pardons Board is composed of the governor, attorney general and the seven justices of the Nevada Supreme Court.

Dixon, who is serving his sentence at the Southern Nevada Correctional Center, had asked to have his minimum sentence reduced to 10 years.

The killing for which Dixon was convicted occurred on May 6, 1998.

Dixon and his 16-year-old cousin were hanging out in front of a supermarket when the cousin gave Marcus his gun.

A car came by with two youths in it. According to Dixon, they were "talking crazy," insulting the boys and their gang. Impulsively, Dixon said in an interview last year, he raised the gun and shot, killing Crittenden and wounding the other boy.

In Nevada, juveniles charged with murder are automatically tried as adults. At separate trials, both youths - each of whom had rejected prosecutors' offer of 10 to 25 years - got the same sentence, 40 years to life.

Wednesday's decision, though, will make it possible for Dixon to get out of prison a quarter-century sooner than he could have otherwise.



















 Man faces murder charge in death of romantic rival

Attorney says he acted in self-defense

By K.C. HOWARD
REVIEW-JOURNAL

Mar. 09, 2007
Copyright © Las Vegas Review-Journal

Troy Nenstiel liked to drive fast.

His family and friends recalled Thursday how the 41-year-old Las Vegas electrician enjoyed racing his motorcycle.

"One of his favorite sayings was 'I'm not driving fast, I'm flying low,'" his cousin Terry Kozlowski said in a courtroom hallway Thursday.

She and a handful of friends and family watched the preliminary hearing of Nenstiel's accused killer, Donald Alan Hartzog, 37, in Justice Court, where Judge Abbi Silver bound him over to District Court to face the charge of murder.

Hartzog, a Clark County volunteer firefighter, is accused of gunning down Nenstiel on Feb. 19 as Nenstiel tried to help his friend -- Hartzog's ex-girlfriend, Jamie Denning -- move from Hartzog's Cold Creek home to Las Vegas.

It was Nenstiel's speeding that defense attorney Kristina Wildeveld highlighted in court Thursday, along with the "bad blood" between him and Hartzog, as she tried to depict the shooting as a justifiable homicide.

"Alan (Hartzog) was acting in self-defense," Wildeveld told jurors.

She made the point that an autopsy found methamphetamine in Nenstiel's system.

Denning, who had lived with and dated Hartzog for several months, was the state's sole witness. She said that as far as she knew, Nenstiel did not use street drugs.

She described how, after she had packed all her things from Hartzog's house into Nenstiel's truck, Hartzog had left the house first.

Nenstiel, with Denning in the passenger seat, drove behind Hartzog on the lone dirt road to leave Cold Creek and head back to Las Vegas.

Hartzog drove his car fast, and Nenstiel tried to catch up. At about 40 mph, he tailed Hartzog along the road until Hartzog made a sudden stop and got out of his car with a gun in his hand.

"He kind of waves it and shows it, like, 'Ha, ha,'" Denning testified.

She said Hartzog shot Nenstiel's rear tire and ordered him out of the truck.

Hartzog then shot him in the arm, Denning said. Nenstiel screamed and tried to run behind his truck as Hartzog continued shooting, she said.

"I saw his back was already full of gunshot wounds," she said.

Hartzog followed Nenstiel with his arm extended and kept shooting, Denning said.

Wildeveld said that after the shooting, Hartzog went to call police and returned to the scene to help. He told police he had killed Nenstiel in self-defense but said he never saw the victim armed, police said.

Hartzog had told Denning to never bring Nenstiel to his house, she acknowledged under questioning from Wildeveld.

Wildeveld also had Denning, who was friends with Nenstiel for five to six years, tell the jury that at one point, she had a restraining order against him because he kept deflating her car tires. About 10 days before the shooting, Hartzog's tire had been slashed.

Denning said she asked Nenstiel to slow the car down on the bumpy road that day, and Wildeveld made the point that there was no reason for Nenstiel to try to keep up with Hartzog's car.

Denning had to be told by the judge more than once to answer the defense attorney's questions. It was clear she felt devoted to the victim.

On a Web page featuring Nenstiel's obituary, Denning called Hartzog a coward and thanked Nenstiel "for looking out for me and protecting me. I feel I cost you your life. I never wanted that. All you wanted was to take me away from all this."

Mike Parise, a lifelong friend of Nenstiel, said Hartzog was jealous of Denning's friendship with Nenstiel.

He said it was typical of Nenstiel to help a friend in need.

Sandra Nenstiel said her son, a graduate of Southern Nevada Vocational Technical Center, could repair any broken household item.

"If anything went wrong, he was always there to fix it," she said.









 Case of bookmaker’s death appealed

LAS VEGAS SUN, Tue, May 9, 2000 (10:12 a.m.)

Defense attorney Daniel Albregts was blunt Monday when he appeared before a panel of Nevada Supreme Court justices.

Amy DeChant couldn't possibly have killed her boyfriend. She weighs 120 pounds. Bruce Weinstein weighed 300 pounds.

His argument was one of the more interesting ones heard by Justices Miriam Shearing, Bill Maupin and Nancy Becker during their visit to Las Vegas Monday.

The justices are in town to hear a number of appellate issues in a variety of cases, both civil and criminal. They are expected to make their decisions within the next few months.

DeChant and Robert Wayne Jones were convicted in the July 1996 shooting death of Weinstein, a wealthy 46-year-old bookmaker who was DeChant's boyfriend.

Weinstein disappeared in July 1996 and his body was discovered in the desert two months later. DeChant and Jones were charged with his murder in 1998 and were convicted later that year.

DeChant had claimed that Weinstein was killed by mobsters who allowed her to live on the condition she clean the murder scene and keep quiet.

DeChant was given a life sentence without the possibility of parole, and Jones, who supplied DeChant the murder weapon and helped her clean up Weinstein's bloody home, was given a five-year sentence.

Albregts argued Monday that DeChant deserves a new trial because insufficient evidence was presented at her first trial to sustain a conviction.

"This is a case about a woman convicted of a crime she didn't commit," Albregts said.

Albregts argued it was impossible for DeChant, who weighs 120 pounds, to have shot the 300-pound Weinstein, dragged him from his upstairs bedroom, put him into a car, rolled him down a ditch in the desert and placed boulders on his head.

District Judge Sally Loehrer erred by allowing a detective to testify about mob hits when he is not considered an expert on organized crime, Albregts said.

Despite what the detective said, Albregts said DeChant's version of events "is not that farfetched," Albregts said.

Deputy District Attorney Marc DiGiacomo argued that there is plenty of evidence that indicated DeChant was rightfully convicted. She fled Las Vegas twice, changed her identity and sought countries without extradition treaties.

Special Deputy Public Defender Kristina Wildeveld argued that her client, Jones, also had nothing to do with the murder. He merely cleaned up a brown spot on a rug at DeChant's request. He didn't know it was what remained of a bloody crime scene already cleaned up by DeChant, Wildeveld said.

Wildeveld told the judges that prosecutors acted inappropriately when they didn't tell Jones he was a suspect in the case and yet had him testify before the grand jury that ultimately indicted him.

DiGiacomo said no one knew Jones was going to be indicted.

"This is not a case where the defendant is snowballed into thinking 'I can go in, give my story and nothing is never, ever going to happen to me,' " DiGiacomo said.

The judges also heard from defense attorney David Schieck, who represents Richard Christopher Johnson.

Johnson was given two life terms in February 1998 in the shooting death of George Hightower, 45.

Johnson shot Hightower eight times in the valet parking area of Caesars Palace during the Larry Holmes-Oliver McCall prizefight. Witnesses testified at his trial that Johnson fired several shots into Hightower's body and then danced around his body before putting the pistol in the dead man's hand and calmly walking away.

Schieck said Johnson should get a new trial because District Judge John McGroarty refused to let Johnson represent himself and he was forced to work alongside Special Public Defender Phil Kohn.

Kim Smith covers courts for the Sun. She can be reached at (702) 259-2321 or by e-mail at kimberly@lasvegassun.com

 Girl, 16, could face death sentence

LAS VEGAS SUN,Wed, Apr 9, 2003 (11:22 a.m.)

MESQUITE -- A Utah teenager charged with fatally stabbing a 3-year-old girl and paralyzing her sister in a Mesquite trailer park will be tried as an adult, a justice of the peace ruled Tuesday.

The ruling surprised 16-year-old Monique Maestas' public defender, who said Justice of the Peace Ron Dodd should have ordered a competency hearing before making his decision.

"Death is on the table," Kristina Wildeveld Coneh said while standing outside the court after the 10-minute hearing. "If she were ruled a juvenile, we wouldn't be talking death here ... Essentially, we are baby sitters trying to teach her what's going on."

But Dodd, who announced his ruling without hearing any oral arguments, said that "the law in this case is very clear."

In Nevada, children 8 and older charged with murder, attempted murder and some sexual assaults are automatically tried in the adult system, and teens 16 and older are eligible for the death penalty.

Clark County District Attorney David Roger said a committee of assistant district attorneys will decide whether to seek the death penalty against Maestas after the preliminary hearing, which is scheduled for May 2.

The Assembly has passed a bill that would prohibit the death penalty for those under 18, but it still must pass the state Senate and be signed by the governor. If it passes, it would prevent Monique Maestas from being put to death.

A national study released last month said that it is unjust to treat teens of Monique Maestas' age as adults.

The MacArthur Foundation Research Network's study on juvenile competency says most children under 17 are unable to comprehend court proceedings and lack the ability to make basic decisions concerning their trial.

Phil Kohn, who also represents Maestas, said he is worried that his client doesn't understand what is happening to her.

"She's very quiet," he said. "She asks so few questions. I don't know how much she understands. That's why we filed the motion."

Dodd also ruled that KLAS Channel 8 will be permitted to bring one television camera into the courtroom during the preliminary hearing. Maestas' attorneys had filed a motion seeking to exclude television cameras from the proceeding.

During the hearing a KLAS lawyer asked the judge if the station could tape gavel-to-gavel coverage for broadcast on Las Vegas ONE, Cox Cable channels 1 and 39, which is owned by the Las Vegas Sun, KLAS and Cox Communications.

Roger said he is not opposed to that, but Kohn is. Kohn said it would be impossible to seat an impartial jury if the hearing were broadcast in its entirety because the defense is not permitted to present evidence in a preliminary hearing. Dodd said he would make a decision April 22.

Monique and her 19-year-old brother Beau did not say anything or show any emotion during the hearing. The teenagers, who are from Salt Lake City, are charged with stabbing Kristyanna Cowan to death on Jan. 22 and leaving her 10-year-old half-sister, Brittney Bergeron, paralyzed in a recreational vehicle parked outside the CasaBlanca hotel in Mesquite.

The Maestas siblings are charged with murder, attempted murder, burglary with a deadly weapon and conspiracy to commit murder.

Police said Beau Maestas told investigators the attack came in retaliation for a drug deal involving the girls' mother, Tamara Bergeron, and her boyfriend, Robert Schmidt. Maestas said Schmidt sold him $125 worth of table salt that he thought was methamphetamine, police said.

Investigators have decided not to pursue drug-related charges against Bergeron. However, investigators are still gathering evidence against her that may lead to child neglect or endangerment charges.

The CasaBlanca RV park where the attack occurred earlier in the year is now quite different, one resident said Tuesday. The lot had been fairly full two and half months ago when the two little girls were stabbed. On Tuesday, the park was less than half full.

A man who said he has lived there for months said many people moved away after the girls were stabbed. He wouldn't give his name because he didn't want any trouble as a result of speaking out.

"The guy who lived next door (to Bergeron) moved out three days later," he said as he stood outside his RV with his 5-year-old son and a puppy. "He couldn't handle it. This place has cleared out."

He said the RV closest to his, a small, older brown and white trailer a few spaces away, was where Beau Maestas' girlfriend lived and where police allege Beau got the knives used during the stabbing. The RV appeared to be abandoned, and the man said he hasn't seen anyone at the trailer in months.

Since the stabbings, parents are more protective of their children, he said.

"My son used to run down to play with other kids," he said, gesturing to the far end of the park. "Now we don't let him go anywhere without an adult."






 Trial puts spotlight once again on juries

LAS VEGAS SUN, Mon, May 7, 2001 (11:16 a.m.)

Boxers or briefs?

Deputy Special Public Defender Kristina Wildeveld remembers the feeling of astonishment she felt when that was the question two jurors asked a prosecutor moments after handing down a guilty verdict in a murder case.

"It made me wonder if they were even listening to the evidence during the trial," Wildeveld said.

A juror in another murder case didn't leave Wildeveld any doubts. When he and his fellow jurors were questioned after a hung jury, he said, "I couldn't listen to the evidence. All I could do was look at your legs."

Despite such incidents of questionable juror behavior, Wildeveld insists she is still a staunch believer in the jury system.

She also still believes jury verdicts need to be unanimous.

The debate over juries and their verdicts has resurfaced in the local legal community in the wake of the Margaret Rudin trial.

Juror 11 in that case, Coreen Kovacs, insisted for more than four days that Rudin was not guilty of shooting her husband Ronald to death in December 1994.

On the fifth day of deliberations, Kovacs changed her vote to guilty, and Rudin was convicted of first-degree murder with use of a deadly weapon. She now faces a life prison sentence.

Jury foreman Ron Vest told reporters afterward he favors a less-than-unanimous jury verdict system, reopening the public debate.

Wildeveld said unanimity is a crucial component of the American judicial system.

"We want a jury of 12 independent thinkers in the jury box. We don't want a group mentality in the jury room," Wildeveld said.

Wildeveld is not alone in her thinking. Many defense attorneys interviewed Friday agree. Among them is Wildeveld's boss, Phil Kohn.

Kohn noted that studies have shown 70 percent to 80 percent of jurors have made up their minds to convict before opening statements are even heard. To allow for a less-than-unanimous verdict would only handicap a defendant further.

"If we reduce the number to 11, we'll never have a system that believes in the presumption of innocence, and that's what our system was built on," Kohn said. "Men and women have fought and died for our rights, and the presumption of innocence is one of them."

Kohn noted that Vest told reporters that if it hadn't been for Kovacs, the jury would have rendered a verdict in 30 minutes.

That's appalling, especially considering there was nine weeks worth of evidence to discuss, Kohn said.

On the other hand, Kovacs didn't fulfill her part of the bargain, either, Kohn said.

Kovacs has since told reporters she was brow-beaten into a guilty verdict, but she had the perfect opportunity to say so before rendering her verdict, Kohn said.

Attorneys poll jurors in the courtroom so jurors can publicly say they disagree with a verdict without fear, Kohn said. Kovacs still chose to say "Yes, this is my verdict."

Kohn and Wildeveld said they suspect many jurors change their vote to go along with the majority, because they believe appellate judges will figure out what the truth is and reverse wrong convictions.

However, the appellate courts only look for technical mistakes, not factual errors, Kohn said.

In fact, Kohn noted, U.S. Supreme Court Justice William Rehnquist once wrote that "factual innocence is not a bar to execution."

While the attorneys said it isn't unusual for jurors to change their minds after a verdict, it is unusual for jurors to go public with their opinions so quickly.

It's also unusual for the public to know so much about jury deliberations.

The public knew within hours that Vest had asked District Judge Joseph Bonaventure to remove Kovacs from the jury panel during deliberations.

Attorneys point out it takes a great deal to be removed from a jury panel.

Rolling eyes, head-shaking and even sleeping aren't enough to get kicked off a jury, they said. Nor is flirting with the attorneys in a non-verbal way -- which they say is fairly common.

Clark County District Attorney Stewart Bell said judges have to determine two things when assessing a juror's ability to serve. They have to decide if the juror can follow the rules and if the juror can remain unbiased.

If the answer is yes, the juror will likely remain on the panel, Bell said. If a juror are sleeping or acting out in any other way, the juror likely will just be admonished.

Defense attorney Pete Christiansen said the jurors he has seen removed have acted inappropriately outside the courtroom.

Christiansen said a woman was kicked off a panel in one of his cases because she called her boyfriend during the trial -- a boyfriend who was sharing a cell block with the man Christiansen was defending. She also hadn't told anyone she was dating an incarcerated man.

Other jurors have been kicked off for investigating crime scenes, Christiansen said.

In another case, Christiansen said a couple of jurors could have been kicked off a panel had he known more about them. He learned after the fact that they had voted to convict his client simply because he couldn't speak English.

It is because jurors bring their personal biases, perceptions and life experiences to the courtroom that the jury screening, or "voir dire," is so important, Kohn said.

Attorneys need to know more about the people who will decide a defendant's fate, Kohn said.

Are they lying to get on the jury panel just so they can write a book or appear on Court TV? Are they just in it to get their 15 minutes of fame?

And yet, some judges in Clark County have been limiting the number of questions that can be asked during voir dire in their rush to get the trial over with, Kohn said.





 Arrest made in animal cruelty case

Updated: June 5, 2008 04:34 PM

Copyright 2000 - 2008 WorldNow and KVBC

It's a story that has generated outrage from Channel 3 viewers. Now, there is a break in the case of the kittens entombed in a concrete wall.

Police have arrested Richard Lee Carter. He was a maintenance man at a local apartment complex.

Police say he sealed the five week old kittens inside a the wall using insulation which quickly hardens. One of them had to be put to sleep. Carter is now facing several charges of animal cruelty.


Denise Rosch reporting

It's a story that's had the News 3 phone lines ringing off the hook. Six kittens were sealed into a block wall at a local apartment complex.

We first told you about it Tuesday. The cats were rescued after someone tipped off volunteers from an animal sanctuary. Although there is an open investigation with Las Vegas Animal Control, many say the punishment may not fit the crime.

"Since we got the big chunks we're working itty bitty piece by itty bitty piece," rescue volunteer Ginger Mudry explains.  

Since Sunday, Mudry has been carefully removing urethane foam from the coats of 5-week-old kittens. Six kittens were all entombed in a block wall at a local apartment complex by someone spraying the unforgiving insulation.

While no one from Las Vegas Animal Control is able to comment on the ongoing investigation, we asked a county officer what generally happens with this sort of case.

"When we can prove a case of animal cruelty we file a complaint with the District Attorney's Office. They're all misdemeanor violations that we allege," Greg Wallen with County Animal Control said.

And that is something that may surprise you.

"They're all misdemeanor violations," Wallen reiterates.  

With a few exceptions, animal cruelty in the state of Nevada can net little more than six months in jail and/or $1000 fine. The only way to change the law is to lobby the legislature. Call your representative and complain.

"It's unfortunate but you do see some pretty terrible things people will do to animals," Wallen said.

Last year County Animal Control received 4,000 calls about animal cruelty. About 600, or 15-percent, resulted in prosecution. As for the kittens, they won't be ready for adoption for at least a month.












 Defense attorney can sympathize

By GLENN PUIT REVIEW-JOURNAL
September 15, 2006

   

Defense attorney Daniel Horowitz is no stranger to the pain of losing a loved one to violence.

Last year, the renowned defense attorney's wife was murdered in California in an high-profile criminal case.

Despite the personal tragedy, Horowitz still represents criminal defendants accused of murder, and in District Court Thursday at the Regional Justice Center, Horowitz and fellow defense attorney Kristina Wildeveld secured an acquittal for a man charged with murder in the killing of another man in a hotel room at Terrible's Hotel Casino.

Afterward, family members of the shooting victim, John Joseph Ohriner, wept and showed shock at the acquittal of Walter Raymond Freitas Jr., 20.

Horowitz looked at the grief-stricken family with an expression of sadness on his face.

"I feel badly for the family of John Ohriner," Horowitz said. "My personal experience does mean that when I see them over there, my heart goes out to them."

In the courtroom of District Judge Joseph Bonaventure this week, prosecutors said the 2005 shooting of Ohriner at Terrible's Hotel Casino was murder; Horowitz and Wildeveld said it was self defense.

Freitas took the stand and admitted to jurors he was a drug dealer who had a huge wad of cash on him at the time he met with Ohriner for a drug deal. He said Ohriner rushed at him and reached into his own pocket, and Freitas shot him because he thought Ohriner might have had a weapon.

A jury acquitted Freitas of murder and manslaughter charges. They convicted him on a sole count of burglary.

Horowitz said the acquittal was the right verdict and that he had warned Freitas' family not to show any expressions of happiness if Freitas was acquitted.

"I told them they can take no joy in this," Horowitz said.

Horowitz certainly knows about such sadness.

Last year, the California defense attorney, who is a regular commentator on Court TV and other cable news networks, returned to his home east of San Francisco to find his wife, Pamela Vitale, 52, viciously murdered. According to news accounts, Vitale suffered 26 head wounds, broken fingers and dislodged teeth.

A police investigation led to the arrest of 17-year-old Scott Dyleski in Vitale's slaying. According to an account of the slaying on the Court TV Web site, authorities said Dyleski killed Vitale as part of a misguided plan to purchase marijuana-growing equipment using the stolen credit cards of Dyleski's neighbors. Records indicated that Dyleski tried to purchase grow-lights online using Vitale's address.

According to Court TV, evidence linked Dyleski to the crime scene, including DNA evidence, a sinister to-do list found in his bedroom and a mark carved into the victim's body, a veritable calling card that resembled the boy's signature symbol on his personal artwork and poetry.

Dyleski was convicted of murder last month and is scheduled to be sentenced next month. He faces life in prison without the possibility of parole.

"The bottom line is he's obviously a very sick, miserable person, who took pleasure in murdering someone in a very painful way," Horowitz said after Dyleski's verdict.

The acquittal of Freitas on Thursday left Ohriner's family grief- stricken. They held one another, crying, and declined comment. But as they walked toward an elevator at the Regional Justice Center, one man was heard saying, "Horowitz, he has no heart."

Horowitz, who had previously represented Freitas in two civil cases in California, didn't hear the remark, but he said nonetheless that he sympathized with the victim's family. He also said the verdict was just given the facts of the case.

"The defense was completely truthful," he said.

 

Cite as: In re William M.

124 Nev. Adv. Op. No. 95

November 26, 2008

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 48649

 

IN THE MATTER OF WILLIAM M., A MINOR.

 

WILLIAM M.,

Appellant,

    vs.

THE STATE OF NEVADA,

Respondent.

 

No. 48650

 

IN THE MATTER OF MARQUES B., A MINOR.

 

MARQUES B.,

Appellant,

    vs.

THE STATE OF NEVADA,

Respondent.

 

Consolidated appeals from juvenile court orders certifying appellants for criminal proceedings as adults on charges involving the use of firearms.  Eighth Judicial District Court, Family Court Division, Clark County; William O. Voy, Judge.

            Reversed and remanded.

 

Kristina M. Wildeveld, Las Vegas, for Appellants.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Cynthia L. Herren, Deputy District Attorney, Clark County, for Respondent.

Allen Lichtenstein, Las Vegas; Lee B. Rowland, Reno, for Amicus Curiae American Civil Liberties Union of Nevada.

Baker & McKenzie LLP and Joel A. Eisenberg, San Francisco, California; National Juvenile Defender Center and Robin Walker Sterling, Special Counsel, Washington, D.C., for Amicus Curiae National Juvenile Defender Center.

Juvenile Law Center and Marsha Levick and Lourdes Rosado, Philadelphia, Pennsylvania, for Amicus Curiae Juvenile Law Center.

 

BEFORE THE COURT EN BANC.

 

OPINION

PER CURIAM:

            These appeals center on Nevada’s presumptive certification statute, which consists of NRS 62B.390(2) and (3).  These provisions create a rebuttable presumption that juveniles who are over 13 years of age and charged with certain enumerated offenses fall outside of the jurisdiction of the juvenile court and must therefore be transferred to the district court for adult criminal proceedings.  In particular, we examine NRS 62B.390(3)(b)’s rebuttal requirements in light of the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.  Under NRS 62B.390(3)(b), to rebut the presumption of certification, the juvenile court must find clear and convincing evidence that the juvenile’s criminal actions were substantially influenced by substance abuse or emotional or behavioral problems that may be appropriately treated within the jurisdiction of the juvenile court.  Appellants argue that NRS 62B.390(3)(b) requires juveniles to admit to the charged, but unproven, criminal actions, which implicates the Fifth Amendment right against self-incrimination and the constitutionality of the presumptive certification provisions.

            Thus in resolving these appeals, we initially determine whether the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings.  We conclude that the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings under the United States Supreme Court’s decision in In re Gault.[1]  Necessarily, we overrule that part of this court’s decision in Marvin v. State[2] that improperly concluded that the Fifth Amendment right against self-incrimination did not apply to juveniles in waiver proceedings.

            Given the Fifth Amendment’s applicability to juvenile certification proceedings, we next address whether NRS 62B.390(3)(b)’s rebuttal terms impinge on the right against self-incrimination by requiring the juvenile to either accede to the criminal court’s jurisdiction despite having a substance abuse or emotional or behavioral problem, or to admit guilt, even though that admission could later be used against him in juvenile or adult court proceedings.  We hold that, by requiring a juvenile to admit to the charged criminal conduct in order to overcome the presumption of adult certification, the presumptive certification statute, NRS 62B.390(2) and (3), violates the juvenile’s Fifth Amendment right against self-incrimination.

            We therefore reverse the district court’s orders certifying appellants as adults and remand these matters for further proceedings consistent with this opinion.  Our disposition of these issues renders the remaining issues in these consolidated appeals moot.

FACTS AND PROCEDURAL HISTORY

            When children under the age of 18 are charged with committing delinquent acts, the juvenile division of the district court retains jurisdiction over them unless the delinquent act is specifically excluded from juvenile jurisdiction under NRS 62B.330(3) or the juvenile court relinquishes jurisdiction under NRS 62B.390 or NRS 62B.400.

            Pursuant to NRS 62B.390, the State may move to certify a juvenile, over the age of 13, as an adult for the purpose of pursuing criminal proceedings against him or her on two bases: discretionary certification and presumptive certification.  Discretionary certification applies when a juvenile is charged with an offense that would have been a felony if committed by an adult, the juvenile was age 14 or older at the time the offense was committed, and the juvenile court, after considering a decisional matrix of factors, determines that the public safety and interest would be better served by transferring the juvenile to adult criminal court.[3]  Presumptive certification applies if the juvenile is charged with either sexual assault involving the use or threatened use of force or violence or an offense involving the use or threatened use of a firearm and the juvenile was age 14 or older at the time the offense was committed.  To rebut the presumption of certification, the juvenile must demonstrate by clear and convincing evidence that (1) he or she is developmentally or mentally incompetent to understand his or her situation and the proceedings of the court or to aid his or her attorney in those proceedings, or (2) that his or her actions were substantially the result of the substance abuse or emotional or behavioral problems of the child and the substance abuse or emotional or behavioral problems may be appropriately treated through the jurisdiction of the juvenile court.[4]  Before either type of certification, the State must first establish prosecutive merit by demonstrating that probable cause exists to believe that the juvenile committed the charged offenses.[5]

            In these consolidated appeals, appellants were juveniles over the age of 13 when they were charged, in separate cases, with offenses involving the use of a firearm.  Respondent State of Nevada petitioned the juvenile court to certify appellants for criminal proceedings as adults under the presumptive certification statute, NRS 62B.390(2).  Following separate proceedings, in which both appellants maintained their innocence, the juvenile court concluded that appellants had failed to rebut the certification presumption and certified appellants for criminal proceedings as adults.

In re William M.

            According to the police report filed in William M.’s case, a witness to a two-person robbery of Roberto’s Taco Shop identified William during a one-on-one lineup as the lookout during the robbery.  At the time of the identification, William was already in custody, but there is no indication in the record of how William came to be in custody or why he was presented to the witness for identification.

            William, who was 17 years old at the time of the incident, was charged with conspiracy to commit robbery, burglary while in possession of a firearm, and robbery with the use of a deadly weapon.  The State sought to certify William as an adult by way of a certification petition under NRS 62B.390(2), the presumptive certification provision.

            William filed an opposition to the State’s certification petition, attaching to it the juvenile court psychologist’s evaluation and William’s probation officer’s certification report.  Both reports detailed William’s alcohol abuse.  The psychological report stated that he had a serious alcohol abuse problem and that his alcohol scale score fell within the maximum risk range, requiring his participation in a substance abuse counseling program.  In addition, the court psychologist diagnosed William with cannabis abuse, amphetamine abuse, and conduct disorder (adolescent-onset type), as well as legal, academic, and peer group issues.  The certification report revealed that William had been cited twice for alcohol-related offenses, was placed on formal probation for having possessed or consumed alcohol as a minor, and was referred to Alcoholics Anonymous meetings.

            A hearing was held to determine whether William should be certified for criminal trial as an adult under NRS 62B.390(2).  During that hearing, William’s counsel stipulated to prosecutive merit, based on the witness who claimed that William had acted as a lookout.  William’s counsel then explained that although there was clear and convincing evidence regarding William’s substance abuse, William was unable to rebut the presumption of adult certification by connecting his substance abuse problem to any actions in the alleged robbery, as he denied being involved in the incident.  While maintaining William’s innocence, William’s counsel then asked the court to assume that if William had been present during the alleged taco shop robbery, his actions would have been influenced by either alcohol or some other type of drug.

            The court orally responded that, even though William had clearly established an alcohol abuse problem, he had not established a direct nexus between his alcohol abuse and the alleged conduct, as required by this court’s interpretation of NRS 62B.390(3)’s rebuttal terms in Anthony Lee R., A Minor v. State.[6]  The juvenile court reasoned that, even if it were to assume that William probably would have been under the influence had he been present at the scene, such a hypothetical situation would not amount to the clear and convincing evidence required to rebut the certification presumption.

            At the close of William’s certification hearing, the juvenile court, concluding that William could not meet his burden to rebut the certification presumption, as he had taken the position that he was not even present during the alleged incident, certified William for criminal proceedings as an adult.  The order certifying William was submitted by the State and signed by the juvenile court.  Although the juvenile court had orally recognized that William “obviously has an issue with alcohol,” the court’s written order stated that the court found no substantial substance abuse.

            Subsequently, William appeared in the district court for criminal proceedings and pleaded not guilty to the charges.  William then timely filed his notice of appeal from the order certifying him as an adult.  He is currently in adult detention and faces up to 51 years’ imprisonment on the charges.

In re Marques B.

            The charges against appellant Marques B. stem from the armed robbery of two individuals by two juvenile males in a park.  As a result of the park robbery, Marques, who was 17 years old at the time, was charged with conspiracy to commit robbery, two counts of robbery with the use of a deadly weapon, discharging a firearm, endangering a person, and possession of a firearm.

            The State sought to certify Marques for criminal proceedings as an adult by way of a certification petition under NRS 62B.390(2).  Marques filed an opposition to the State’s petition for certification that included his court-ordered psychological and competency evaluations, a Family and Youth Services Department psychological services report rendered approximately three years prior, a Clark County School District Multidisciplinary Evaluation Team report, and a diagnostic report showing a positive result for the presence of marijuana metabolite in Marques’ submitted sample.

            The juvenile court psychologist diagnosed Marques with cannabis abuse, disruptive behavior disorder (not otherwise specified), a history of learning disorders, a history of communication disorders, adolescent antisocial behavior, and borderline intellectual functioning.  It was also noted that Marques had legal, academic, and peer group issues.  Marques’ psychological evaluation also revealed that Marques has received special education services since kindergarten; he has been classified by the Clark County School District as a child with specific learning disabilities; he has demonstrated weakness in math, listening comprehension, written expression, and basic reading; his last IQ score of 74 falls within the borderline range of intellectual functioning; and he had been identified as being developmentally delayed and having a severe oral language disorder.

            Marques’ competency evaluation concluded that he was “borderline competent” and “just barely able to understand what’s going on.”  The evaluation stated that Marques was unable to state the specific charges against him; he understood the charges were serious; he thought that the worst thing that could happen to him was the judge “sending [him] up for two years,” and that would be the worst thing “because it’s a long time”; he was unable to describe the role of the prosecutor; he did not know the difference between the judge, the prosecutor, and the defense attorney; his learning disabilities impacted his expressive and receptive language skills; his low level of intellectual functioning needed to be taken into account when using legal terminology; he could not explain what a plea bargain or plea agreement was; and he could not fully appreciate the risks involved in a plea bargain.  The competency evaluation concluded that Marques had deficits in his abilities associated with competence to stand trial, but the deficits were not sufficient to have him deemed incompetent by the court.

            The Family and Youth Services Department report showed Marques reading at a second grade level, scoring below the first percentile for his age.  All of the reports submitted with Marques’ opposition that included an assessment for violence found that Marques demonstrated a very low risk for violence.

            A hearing was held to determine whether Marques should be tried as an adult under NRS 62B.390(2).  During that hearing, Marques’ counsel stipulated to prosecutive merit.  Like in William’s case, counsel argued that, since Marques denied being present during the alleged incident, the court should accept the hypothetical proposition that if Marques had been at the robbery in the park, his involvement would have been substantially influenced by his substance abuse and emotional and behavioral problems.

            The court found that the State had established prosecutive merit.  Concluding that Marques could not meet his rebuttal burden by establishing a nexus between his substance abuse or his emotional and behavioral issues and the park robbery, as he denied any involvement in the robbery, the court certified Marques for criminal proceedings as an adult.  The order certifying Marques as an adult provides that he is not developmentally or mentally incompetent to understand his situation and the proceedings of the court or to aid his attorney in those proceedings.  The order also states that there was not clear and convincing evidence that Marques’ actions were substantially the result of his emotional or behavioral problems and that such problems could be treated through the jurisdiction of the juvenile court.

            Marques appeared in the district court for criminal proceedings and pleaded not guilty to the charges.  He then filed his notice of appeal from the order certifying him as an adult.  After spending weeks in adult detention, the district court granted Marques house arrest.  Marques faces up to 60 years’ imprisonment on the charges.

            Because William’s and Marques’ appeals raised similar issues regarding the constitutionality of Nevada’s presumptive certification provisions, NRS 62B.390(2) and (3), we consolidated the two matters for consideration.

DISCUSSION

            Appellants argue that Nevada’s presumptive certification provisions violate their Fifth Amendment right against self-incrimination by requiring them to admit guilt to rebut the presumption of adult certification but failing to prohibit the admission of their incriminating statements in subsequent guilt-determination proceedings.  Thus, preliminarily, we must determine whether the Fifth Amendment guarantee against self-incrimination applies to statements made in juvenile certification proceedings, a question that we have not before directly addressed.  Because we determine that the Fifth Amendment right applies here, we then consider whether NRS 62B.390(3)(b)’s rebuttal provision violates that right by requiring juveniles to make self-incriminating statements.

            “Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional.”[7]  The presumption of validity is rebutted when the challenger clearly shows the statute’s invalidity.[8]  We review the constitutionality of a statute de novo.[9]  As always, our objective when interpreting statutes is to give effect to the Legislature’s intent.[10]  Here, NRS 62B.390(3)(b)’s language requires the juvenile to admit to the charged criminal conduct in order to rebut the presumption.  Consequently, the presumptive certification statute is unconstitutional.

The Fifth Amendment right against self-incrimination applies in juvenile certification proceedings

            The Fifth Amendment applies to the states through the Fourteenth Amendment and directs that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”[11]  This privilege against self-incrimination has been “broadly applied and generously implemented” by the United States Supreme Court[12] and has long been interpreted to mean that a defendant may refuse “to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”[13]  Moreover, the United States Supreme Court has unequivocally extended the Fifth Amendment right against self-incrimination to juveniles in delinquency proceedings.[14]  In the 1967 case In re Gault, which involved a guilt-determination delinquency proceeding, the Court explained that

the availability of the [Fifth Amendment privilege against self-incrimination] does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.  The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.[15]

The Gault opinion thus indicates that statements made by juveniles in detention may be of the nature that would trigger Fifth Amendment protection:

            It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to “criminal” involvement.  In the first place, juvenile proceedings to determine “delinquency,” which may lead to commitment to a state institution, must be regarded as “criminal” for purposes of the privilege against self-incrimination.  To hold otherwise would be to disregard substance because of the feeble enticement of the “civil” label-of-convenience which has been attached to juvenile proceedings. . . .

            In addition, apart from the equivalence for this purpose of exposure to commitment as a juvenile delinquent and exposure to imprisonment as an adult offender, the fact of the matter is that there is little or no assurance . . . in most if not all of the States, that a juvenile apprehended and interrogated by police . . . will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody.[16]

Accordingly, the Fifth Amendment privilege against self-incrimination applies to inculpatory statements made in juvenile proceedings.

Nevada juvenile court certification proceedings may elicit inculpatory statements, implicating the Fifth Amendment

            As noted by the Supreme Court in Gault, statements are inculpatory under the Fifth Amendment if they could be used to incriminate the juvenile and deprive him of his liberty in any future delinquency or criminal proceedings.[17]  Thus to determine the Fifth Amendment’s applicability, courts must look to the nature of the statements at issue and their potential for exposure to commitment or imprisonment.

      NRS 62B.390(3)(b) requires an admission of the charged criminal conduct in order to
      overcome the presumption of adult certification

            As noted, to rebut presumptive certification under the statute at issue here, NRS 62B.390(3)(b), the juvenile court must find by clear and convincing evidence that the juvenile’s “actions . . . were substantially the result of the substance abuse or emotional or behavioral problems.”  In Anthony Lee R., A Minor v. State,[18] this court recognized that while drugs and emotional or behavioral problems cannot be said to “cause” criminal conduct, they are often overwhelming factors that contribute to a juvenile’s decision to commit a crime.  Consequently, we interpreted NRS 62B.390(3)(b)’s predecessor, NRS 62.080(2)(b), as requiring the juvenile to rebut the presumption by establishing that substance abuse or emotional or behavioral problems had “substantially influenced or contributed to [the charged] criminal actions.”[19]  Thus, under Anthony Lee R.’s interpretation of the rebuttal provision’s operation, a juvenile must incriminate himself to rebut the certification presumption, as he must present clear and convincing evidence that due to a substance abuse, emotional, or behavioral problem, he committed the charged criminal actions.

            The juvenile court’s current practice of requiring juveniles to establish a direct nexus between their substance abuse, emotional, or behavioral problems and the charged criminal conduct supports our conclusion that incriminating statements are required to rebut the certification presumption.  The court in William’s case noted that William’s own statements would have to establish that he was intoxicated on the night in question during the alleged incident and that, as the court understood the rebuttal requirements, William could not meet his burden as he denied being present during the incident.  Similar statements were made by the district court in Marques’ case.

      Incriminating statements made by juveniles during waiver proceedings may be used
      against them in subsequent criminal proceedings

            Thus, under Anthony Lee R., NRS 62B.390(3)(b) appears to require the juvenile to make incriminating statements.  In Marvin v. State,[20] however, this court held that because a juvenile’s certification proceeding was not designed to determine guilt, the Fifth Amendment right against self-incrimination was irrelevant with respect to evidence submitted therein.[21]  In that case, Marvin, a 17-year-old juvenile arrested in Carson City for burglary and possession of burglary tools, made statements while in detention regarding his participation in several burglaries.[22]  Based on the incriminating information derived from Marvin’s statements, a second county, Washoe, filed additional burglary charges and the juvenile court waived its jurisdiction and transferred Marvin to adult criminal court.[23]

            On appeal, Marvin argued that the confessions on which the juvenile court based its jurisdiction waiver were admitted in violation of his Fifth Amendment right against self-incrimination.[24]  This court rejected Marvin’s Fifth Amendment claim, recognizing that while certification was “a critically important action,” it did not necessarily result in the juvenile’s condemnation and thus did not implicate his Fifth Amendment right against self-incrimination.[25]  By extension, Marvin suggests that evidence submitted during a certification proceeding cannot or will not be used in later guilt determination proceedings.  But, as recognized by this court after Marvin, nothing prohibits the use of these statements against the juvenile in subsequent juvenile or adult criminal proceedings.[26]  Should the juvenile meet his burden under NRS 62B.390(3)(b) and Anthony Lee R., the juvenile court may nonetheless certify the juvenile for criminal proceedings as an adult under the discretionary certification provision, NRS 62B.390(1).[27]  In determining whether to waive its jurisdiction under the discretionary certification provision, the juvenile court may consider the incriminating statements made by the juvenile in attempting to rebut the presumptive certification provision.[28]  Further, the juvenile’s admission of the charged criminal conduct may ultimately be used against him in any adult criminal proceedings, if the statements are deemed to have been made voluntarily.[29]  And, although this court has not specifically addressed whether such statements may be admitted at a subsequent juvenile delinquency hearing, we have suggested that they could be admitted if made voluntarily, and nothing in the statute prohibits their admission.[30]

            Accordingly, we take this opportunity to overrule Marvin, in part.  Specifically, we renounce Marvin’s conclusion that the Fifth Amendment is irrelevant during a certification proceeding simply because guilt is not being determined therein.  Based on the Supreme Court’s opinion in Gault, the type of proceeding is not determinative of whether the Fifth Amendment privilege applies.[31]  Rather, the availability of the privilege turns on the nature of the statements and the exposure that the statements invite.[32]

            While the result of a certification hearing is not a final adjudication of guilt, the California Supreme Court has recognized that “the certification of a juvenile offender to an adult court has been accurately characterized as ‘the worst punishment the juvenile system is empowered to inflict.’”[33]  We, too, have noted that “[t]he juvenile court’s decision to retain jurisdiction or certify for criminal proceedings is a much more momentous and life-changing event for a juvenile than is an adjudication of delinquency.”[34]  As a result, and because the statements arguably required under NRS 62B.390(3)(b) and Anthony Lee R. to rebut presumptive certification in juvenile proceedings are inculpatory in nature and invite exposure to commitment or imprisonment, since they may be used against the juveniles in subsequent delinquency and criminal proceedings that could directly result in a loss of liberty, the Fifth Amendment privilege against self-incrimination is available to juveniles in certification proceedings.

No alternative constitutional interpretation of statute available

            Because we conclude that the Fifth Amendment privilege is available to juveniles in certification proceedings, NRS 62B.390(3)(b)’s rebuttal terms, which require the juvenile to admit to the charged criminal actions to overcome presumptive certification, appear to be unconstitutional.  The language of a statute is generally read in accordance with its plain meaning, unless ambiguous.[35]  When possible, if one interpretation of a statute involves serious constitutional difficulties, we will reject that interpretation in favor of a reasonable, constitutionally sound alternative.[36]

            The plain language of NRS 62B.390(3)(b) requires that a juvenile present clear and convincing evidence that his or her actions were substantially influenced by either substance abuse or emotional or behavioral problems.  Clearly, the term “actions” refers to the charged criminal actions.  Accordingly, a juvenile must present evidence that his substance abuse or emotional or behavioral problems substantially influenced his commission of the charged criminal actions.  In other words, to rebut presumptive certification, the juvenile must incriminate himself.

            The State argues that NRS 62B.390(3)(b) can be read in a manner that would not require the juvenile to present evidence regarding the charged criminal actions in order to overcome the presumption of adult certification.  But the statute expressly requires the juvenile to present clear and convincing evidence that the charged criminal actions were substantially the result of substance abuse, emotional, or behavioral problems.  To interpret NRS 62B.390(3)(b) in a manner that removed this requirement, we would have to substantially rewrite the statute.  Such extensive statutory revisions are not within the judiciary’s province, but that of the Legislature.  The State’s argument is thus unpersuasive.

            In light of our earlier conclusion that the Fifth Amendment right against self-incrimination applies to juveniles in waiver proceedings, NRS 62B.390(3)(b)’s requirement that a juvenile admit the charged criminal conduct, and thereby incriminate himself, in order to overcome the presumption of adult certification is unconstitutional.  As the Legislature clearly intended to maintain exceptions to presumptive certification, NRS 62B.390(2) cannot stand alone, without said exceptions. Accordingly, we declare the entirety of Nevada’s presumptive certification provisions, NRS 62B.390(2) and (3), unconstitutional.

            This decision was not made without forethought.  Even though presumptive certification is no longer available, the State may nonetheless petition for adult certification of juveniles who would have fallen under the presumptive certification provisions by seeking discretionary certification under NRS 62B.390(1).  As the records in these appeals indicate, the State regularly seeks discretionary certification under NRS 62B.390(1) when presumptive certification fails.  Nothing in our decision today prevents the State from seeking certification of juveniles in appropriate cases under the discretionary certification provision.[37]

CONCLUSION

            Based on the U.S. Supreme Court’s decision in In re Gault,[38] we hold that the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings.  Consequently, we overrule that portion of this court’s decision in Marvin v. State[39] suggesting that the Fifth Amendment right against self-incrimination is necessarily irrelevant in juvenile certification proceedings.  Further, because NRS 62B.390(3)(b)’s rebuttal terms require juveniles to admit to the charged criminal conduct, Nevada’s presumptive certification provisions, NRS 62B.390(2) and (3), violate the Fifth Amendment and therefore are unconstitutional.  Accordingly, here, we reverse the district court’s orders certifying appellants as adults for criminal proceedings and remand these matters for further proceedings in the juvenile court consistent with this opinion.

 

**********FOOTNOTES**********

[1]        387 U.S. 1 (1967).

[2]        95 Nev. 836, 603 P.2d 1056 (1979).

[3]        See In the Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983), disapproved of on other grounds by Matter of William S., 122 Nev. 432, 132 P.3d 1015 (2006).

[4]        See Anthony Lee R., A Minor v. State, 113 Nev. 1406, 952 P.2d 1 (1997).

[5]        Seven Minors, 99 Nev. at 437, 664 P.2d at 953.

[6]        113 Nev. at 1416-17, 952 P.2d at 7-8.

[7]        Nevadans for Nevada v. Beers, 122 Nev. 930, 939, 142 P.3d 339, 345 (2006).

[8]        Id.

[9]        Id.

[10]      Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513 (2000).

[11]      Estelle v. Smith, 451 U.S. 454, 462 (1981).

[12]      In re Gault, 387 U.S. 1, 50 (1967).

[13]      Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

[14]      Gault, 387 U.S. at 50.

[15]      Id. at 49.

[16]      Id. at 49-50.

[17]      Id. at 50.

[18]      113 Nev. 1406, 1416, 952 P.2d 1, 7 (1997).

[19]      Id. at 1416, 952 P.2d at 8.  NRS 62.080 was repealed and its provisions recodified as NRS 62B.390, effective on January 1, 2004.  2003 Nev. Stat., ch. 206, § 53, at 1030-31, §§ 383-384, at 1162.  The version of NRS 62.080 at issue in Anthony Lee R. was substantively similar to the current version of NRS 62B.390(3)(b) and read in relevant part, “If a child 14 years of age or older is charged with . . . [an] offense involving the use or threatened use of a deadly weapon or an attempt to commit such an offense, . . . the juvenile division . . . shall certify the child for proper criminal proceedings to [the adult court] unless the court specifically finds that . . . exceptional circumstances exist because the child’s actions were substantially the result of his substance abuse or emotional or behavioral problems[,] and such abuse or problems may be appropriately treated through the jurisdiction of the juvenile division.”

[20]      95 Nev. 836, 603 P.2d 1056 (1979).

[21]      Id. at 840, 603 P.2d at 1059.

[22]      Id. at 839, 603 P.2d 1058.

[23]      Id. at 840, 603 P.2d at 1059.

[24]      Id.

[25]      Id. at 841, 603 P.2d at 1060 (quotation and citation omitted).

[26]      See Matter of William S., 122 Nev. 432, 132 P.3d 1015 (2006); Quiriconi v. State, 96 Nev. 766, 616 P.2d 1111 (1980).

[27]      Matter of William S., 122 Nev. 432, 132 P.3d 1015.

[28]      Indeed, in both William’s and Marques’ cases, the State has indicated its intent to pursue discretionary certification if presumptive certification is denied.  No statute or decisional law currently prevents the State from using any statements made by William or Marques in the discretionary certification proceedings.  Id. at 437, 132 P.3d at 1018.

[29]      Quiriconi, 96 Nev. at 771, 616 P.2d at 1114.

[30]      Id. (noting that where the record supports a finding of voluntariness, statements obtained from juveniles prior to adult certification are admissible in criminal trials).

[31]      387 U.S. 1, 49-50 (1967).

[32]      Id.

[33]      Ramona R. v. Superior Court (People), 693 P.2d 789, 795 (Cal. 1985) (quoting Note, Separating the Criminal from the Delinquent: Due Process in Certification Procedure, 40 So. Cal. L. Rev. 158, 162 (1967)).

[34]      Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1410 n.1, 952 P2d 1, 4 n.1 (1997).

[35]      California Commercial v. Amedeo Vegas I, 119 Nev. 143, 145, 67 P.3d 328, 330 (2003).

[36]      Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975).

[37]      See, e.g., Matter of William S., 122 Nev. 432, 132 P.3d 1015 (2006).

[38]      387 U.S. 1 (1967).

[39]      95 Nev. 836, 603 P.2d 1056 (1979).

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Charge dismissed against man arrested in girl's death

By FRANCIS MCCABE
LAS VEGAS REVIEW-JOURNAL

A Las Vegas justice of the peace on Thursday tossed out a murder charge against a man authorities alleged was responsible for a 2-year-old girl's death.

Justice of the Peace Nancy Oesterle said prosecutors did not present evidence needed at a preliminary hearing to send the case against Emanuel Dewayne Dodson to trial in District Court.

Dodson, who is in his late 20s, was charged with murder by child abuse in connection with the June 14, 2009, death of Jaylin Anyiah Washington.

In her decision, Oesterle said there were a number of questions in the case including whether Jaylin suffered her injuries from abuse or a fall on rocks and, if it was abuse, who did it.

Prosecutors admitted there were issues with the case, including when Jaylin suffered her injuries.

Defense attorney Kristina Wildeveld said key testimony came from Clark County Medical Examiner Lary Simms, who testified Jaylin suffered her injuries 36 to 48 hours before her death.

Jaylin was being watched by at least two other adults, as well as Dodson, during that time period, Wildeveld said.

Testimony during the three-day preliminary hearing indicated Jaylin displayed symptoms of injury, including not wanting to eat, days before her death.

Jaylin's mother, Tiffany Green, testified she didn't take her daughter to the hospital because she had no health insurance and couldn't afford medical costs.

Wildeveld said the medical examiner testified the child could have survived if she had received medical attention.

Dodson was watching Jaylin the morning of her death. Around 8:30 a.m. the toddler complained of stomach pain. She was found passed out in a bedroom of a home in the 1700 block of East Karen Avenue, near Sahara Avenue and Maryland Parkway.

Green was at work and came home after receiving a call about Jaylin's condition. Green called Las Vegas police when she found Jaylin unresponsive.

Dodson fled the scene before police arrived.

Jaylin's sibling told authorities Dodson had whipped the toddler with a belt. Green testified that she never saw Dodson physically abuse her children.

During the preliminary hearing, the medical examiner testified the injuries could have happened from a fall, a punch, a kick, or a car accident, but not a belt, Wildeveld said.

The Clark County coroner's office had ruled the death a homicide.

Dodson spent eight months in jail on the murder charges.

He has since moved to Los Angeles where he has a "legitimate" job and three children of his own, Wildeveld said. Dodson reportedly was dealing drugs from the home he lived in with Green and her children.

Chief Deputy District Attorney Vicki Monroe said the case will be reviewed. Prosecutors still could bring the case before a grand jury.

 

 


Find this article at:
http://www.lvrj.com/news/charges-dismissed-against-man-arrested-in-girl-s-death-95054069.html

 

 

 

Victor Fakoya can return to his family

By Francis McCabe
LAS VEGAS REVIEW-JOURNAL
Posted: May 12, 2011 | 6:49 p.m.

Victor Fakoya can finally go home.

For months, the Nigerian immigrant and, as of last Friday, U.S. citizen has battled Clark County prosecutors for the right to live with his family. He previously spent two years in jail before a jury acquitted him of abuse and murder charges.

On Thursday, after five months of legal wrangling, a Family Court hearing master allowed Fakoya to be reunited with his wife and two daughters and to move into his Las Vegas home.

Attorney Kristina Wildeveld, who represents Fakoya, said case workers from the Department of Family Services will observe the Fakoyas over the next seven weeks. A final hearing to close the case is set for June 30.

Fakoya said he was relieved he now could be with his family. He said he is still bothered that he was targeted by the district attorney's office, and he believes his rights were violated.

Since Fakoya's December acquittal in the death of a 2-year-old boy, prosecutors have refused to let him live with his family unless he admitted to their accusations in a related Family Court child protection case.

But Fakoya refused to admit to something he didn't do, vowed to fight the case to the U.S. Supreme Court and spent every night for the past five months away from his wife and two daughters.

Earlier this month, after weeks of public scrutiny of the matter, the district attorney's office agreed to resolve the child protection case.

Fakoya pleaded no contest to a Family Court petition that stated he did not call 911 in a timely manner after realizing 2-year-old Daniel Jaiyesimi was unconscious.

The delay was a couple of minutes. When Fakoya saw Daniel had become unconscious, his first phone call was to the boy's father. A minute later, he called his wife, who told him to call 911. He then immediately called 911.

Authorities believed Daniel, whose family shared the Fakoya home, died as a result of child abuse. Fakoya was the last adult known to be with him.

But during two criminal trials, the first of which ended in a hung jury, medical expert testimony failed to narrow down what caused the boy's death or prove Fakoya caused an injury.

Daniel was sick for weeks before his death, and there was evidence to support five possible causes. Only one pointed to abuse, Fakoya's defense team said.

Before the first criminal trial, defense lawyers and prosecutors had agreed to resolve the child protection case if Fakoya admitted he was unable to care for his children because of incarceration.

Fakoya could have taken parenting and anger management classes, and the matter would have been resolved. But the child protection case lingered as the criminal case remained unresolved.

Five days after Fakoya's acquittal, the county lawyers handling the Family Court case refiled the original allegation.

Prosecutors again offered a potential resolution but only if Fakoya attended child abuse counseling, which would require that he admit to abusing Daniel. Failing to meet that requirement would have resulted in permanent termination of his parental rights.