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Nevada Appellate Court Summaries (5-4-21)

By Joe Tommasino, Esq.

Supreme Court of Nevada

Insanity:  Here, the defendant contested the validity of his convictions on the basis that the district court misinstructed the jury on voluntary intoxication, and otherwise erred by denying his motion to vacate the jury’s guilty verdict and find him not guilty by reason of insanity; but the Court found that (1 ) sufficient evidence in the record supports the defendant’s convictions, and (2) the district court did not abuse its discretion in giving the challenged instruction. For the defendant’s alleged insanity to give him a complete defense to the charged crimes, his condition must satisfy a specific and demanding test—that is, “[d]ue to a disease or defect of the mind,” he suffered from delusions such that he did not “(1) [k]now or understand the nature and capacity of his . . . act; or (2) [a]ppreciate that his or her conduct was wrong.” Here, a reasonable juror could have looked at the evidence and concluded that the defendant did not satisfy the applicable test. The Court emphasized that “even if the jury believed that [the defendant] had the delusions either of his psychiatrists described, and even if they believed those delusions were caused by a ‘defect of the mind,’ . . . and not [intoxicant]  use, the evidence demonstrates that [the defendant] knew that he was setting a house on fire, the house was occupied by others, and the occupants would want to stop him.” The defendant likewise knew enough to escape from the fire and to attempt to evade arrest. Kassa (Abebaw) v. State, 137 Nev. Adv. Op. No. 16, ___ P.3d ___ (April 29, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Superpriority lien statute: (1) NRS 116.3116(2) (2009) gives a homeowners association’s (HOA) lien priority over a first deed of trust with respect to the HOA’s “assessments for common expenses based on the periodic budget adopted by the [HOA] … which would have become due in the absence of acceleration during the 9 months immediately preceding institution of an action to enforce the lien”(emphasis added); (2) here, respondents’ predecessor attempted to satisfy the HOA’s superpriority lien by tendering a check equaling nine (9) months’ worth of assessments, but the HOA had imposed a yearly assessment, such that the entire yearly assessment became due “during the 9 months immediately preceding” when the HOA took action to enforce its lien; and (3) the district court correctly granted summary judgment for respondents and reasoned that the HOA’s imposition of an annual assessment “accelerat[ed]’ the assessments’ due date, such that respondents were not required to tender more than 9 months of assessments to satisfy the superpriority portion of the HOA’s lien.” While an HOA’s imposition of an annual assessment may, in the abstract, not be an “acceleration,” the appellant did not explain what “in the absence of acceleration” means if the statute did not presuppose the imposition of monthly assessments and account for the possibility of an annual assessment. In this respect, the commentary to the Uniform Common Interest Ownership Act of 1982, 7 U.L.A., part II (2009) (amended 1994, 2008) (UCIOA), upon which the Legislature based NRS 116.3116(2), supports the conclusion that NRS 116.3116(2) presupposes the imposition of monthly assessments.

The commentary explains that the purpose of the nine (9)-month superpriority lien provision is to “strike[ ] an equitable balance between the need to enforce collection of unpaid assessments and the obvious necessity for protecting the priority of the security interests of lenders.” In furtherance of this purpose, the Supreme Court concluded that NRS 116.3116(2)’s use of “in the absence of acceleration” accounts for the situation that occurred here, where the HOA imposed an annual assessment but a secured lender paid nine (9) months’ worth of assessments. Accordingly, when an HOA imposes an annual assessment all at once, there has been an “acceleration” under NRS 116.3116(2). Thus, even when an HOA imposes an annual assessment, the superpriority portion of the HOA’s lien can be satisfied by tendering 9 months’ worth of assessments. Because respondents’ predecessor made such a tender in this case, the district court correctly determined that the HOA’s foreclosure sale did not extinguish the first deed of trust and that the appellant took title to the property subject to that deed of trust. Anthony S. Noonan IRA, LLC v. U.S. Bank Nat’l Ass’n EE, 137 Nev. Adv. Op. No. 15, ___ P.3d ___ (April 15, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Nevada Court of Appeals

Competency: (1) Trial courts have a duty to ensure that criminal defendants are competent while standing trial; thus, a trial court must order a hearing sua sponte to determine whether a defendant is competent when there is reasonable doubt about his or her competency; (2) to fulfill its duty to order a competency hearing, a trial court must follow Nevada’s statutory competency procedures and consider any evidence of incompetence in the record, regardless of whether that evidence was adduced pretrial or during trial; (3) in reaching its reasonable- doubt determination, the trial court must consider evidence of incompetence in the aggregate; that is, evidence of incompetence should be considered in light of other evidence of incompetence, as well as the court’s own observations of the defendant; and (4) if a trial court fails to order a competency hearing when reasonable doubt arises, an appellate court may remedy the failure by remanding the case to the trial court to hold a retrospective hearing to determine whether the defendant was incompetent during trial, provided the trial court first determines on remand that it is feasible to retrospectively determine the defendant’s competence. The United States and Nevada Constitutions prohibit trying a criminal defendant while he is mentally incompetent. NRS 178.400(2) defines “incompetent” to mean that the defendant does not have present ability to understand the nature of the criminal charges against the defendant; to understand the nature and purpose of the court proceedings; or to aid and assist the defendant’s counsel in the defense at any time during the proceedings with a reasonable degree of rational understanding. An incompetent defendant lacks the requisite mental cognizance to receive a fair trial and appreciate the rights associated therewith. A defendant cannot, among other things, effectively assist counsel, confront witnesses, or intelligently decide whether to testify or remain silent. Thus, both the United States and Nevada Supreme Courts have recognized that conviction of an incompetent criminal defendant violates due process. The right to stand trial while competent being paramount, the United States Supreme Court has recognized a procedural due process right to a hearing to determine whether a defendant is competent, if sufficient doubt of competency arises at any time. The Nevada Supreme Court has embraced this right by requiring a trial court to order a competency hearing sua sponte when any evidence before the court—in isolation or in light of other evidence—gives rise to reasonable doubt as to the defendant’s competency. Nevada prescribes statutory procedures that trial courts must follow when determining whether doubt is reasonable. If there is such doubt, the court must conduct a competency hearing; neither the defendant nor defense counsel can waive the right to a hearing. The Nevada Supreme Court has consistently remedied violations of a defendant’s right to a competency hearing with reversal of the conviction and remand for a new trial but has not mandated that a new trial is the only permissible remedy. The instant case presented questions that Nevada competency jurisprudence had previously failed to answer or clarify. The Court of Appeals extended Nevada’s procedural due  process requirement of a hearing to determine competency to novel factual circumstances and applied a new remedy. The Court of Appeals then announced the following three conclusions:

“(1) [R]easonable doubt exists as to a defendant’s competency where the defendant has a history of mental health issues and psychoactive medication use, is deprived of medication during trial, and becomes debilitated thereafter; (2) [A] trial court must consider any evidence of incompetence in the record when determining whether reasonable doubt exists notwithstanding whether the case is transferred from another judge; and (3) [W]e may remedy a violation of a defendant’s right to a competency hearing by remanding the case to the trial court to determine whether the defendant was incompetent during trial, but the trial court must first determine if the competency hearing is feasible before holding it.”

Here, federal due  process jurisprudence and the Nevada Constitution required the district court to order a competency hearing sua sponte because reasonable doubt arose as to the defendant’s competency on the third day of trial in light of the nature of the charged crime, the defendant’s history of mental-health conditions and use of psychoactive medications, the defendant being deprived of medication, and the defendant’s abnormal behavior thereafter. The reasonable doubt that accrued on the third day of trial continued into the fourth day of trial, where the defendant’s competency became even more doubtful in light of his inability to speak and his refusal to acknowledge his counsel. The Court of Appeals emphasized that the record does not suggest that the defendant was feigning his behavior or attempting to manipulate the court. Regarding the applicable remedy where the district court failed to order the required competency hearing, the Court of Appeals emphasized that the district court must determine on remand that a meaningful retrospective hearing to determine competency is feasible. A retrospective competency hearing is “feasible if there is sufficient evidence available to reliably determine a defendant’s competence at or around the time reasonable doubt arose.” To determine whether a retrospective competency hearing is feasible, a trial court must consider these factors:

  1.  he passage of time;
  2. The availability of contemporaneous medical evidence, including medical records and prior competency determinations;
  3. Any statements by the defendant in the trial record; and
  4. The availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with [the] defendant before and during trial as well as any other facts the court deems relevant.

The trial court’s focus in making “the feasibility determination must be on whether a retrospective competency hearing will provide [a] defendant a fair opportunity to prove incompetence, not merely whether some evidence exists by which the trier of fact might reach a decision on the subject.” “Because of the inherent difficulties in attempting to look back at the defendant’s past mental state, the burden of persuasion” is on the prosecution to convince the trial court “by a preponderance of the evidence that a retrospective competency hearing is feasible in this case.” If, on remand, the district court determines that a hearing to retrospectively determine the defendant’s competence is not feasible, then the judgment of conviction remains vacated and the district court is ordered to conduct a new trial. If the district court determines that a hearing is feasible, then it must conduct the hearing in accordance with NRS 178.415. If, at the conclusion of the hearing, the district court finds that the defendant was competent throughout his 2019 trial, then the court must reinstate its judgment of conviction. Alternatively, if the court finds that the defendant was incompetent, then the district court must conduct a new trial. Concurring in part and dissenting in part, Judge Tao argued that the majority resolved this appeal by vacating a murder conviction in favor of a remedy (a retrospective competency hearing) “that [the defendant] himself never requested; that the Nevada Supreme Court has already announced that district courts cannot order; and that doesn’t even apply to the facts of this case.” Goad (Ralph) v. State, 137 Nev. Adv. Op. No. 17, ___ P.3d ___ (April 29, 2021). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Resources

About the author: Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).

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