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City of Las Vegas v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

November 16, 2017

CITY OF LAS VEGAS, Petitioner,

         Original petition for a writ of mandamus challenging a district court order vacating misdemeanor convictions and remanding for a new trial.

          Bradford R. Jerbic, City Attorney, and Kelly K. Giordani, Deputy City Attorney, Las Vegas, for Petitioner.

          Weiner Law Group, LLC, and Jason G. Weiner and Gregory G. Cortese, Las Vegas, for Real Party in Interest.



          STIGLICH, J.

         In this opinion, we consider an appellate court's review of unpreserved trial error. As we have emphasized, it is incumbent upon the parties to make a contemporaneous objection to trial error. This not only ensures that the trial court has an opportunity to rule upon the objection and take remedial action if appropriate, but it also preserves the alleged error for appellate review. Conversely, unpreserved error need not be considered on appeal. While we have allowed discretionary review of unpreserved error, we have limited such review to errors that are unmistakably apparent from a casual inspection of the record. Here, the district court, acting in its appellate capacity, considered an unpreserved claim but ignored the clear record and speculated as to facts that could demonstrate error. As the district court's review was not in accord with our established plain error rule, we grant the petition and issue the requested writ.


         In February 2015, Brock Rice, Trey Rosser, and Jeremy Hughes were leaving a restaurant and bar when they saw Kimberly Kamide lying on the ground, clearly intoxicated. The three men offered to give Kimberly a ride to her nearby home. When they arrived at Kimberly's residence, her husband, Steven Kamide, ran out of the house toward the vehicle. He pushed and shoved Kimberly to the ground and got into a physical altercation with Rice, Rosser, and Hughes.

         The City of Las Vegas (the City) charged Kamide with one count of domestic battery and two counts of simple battery in the Las Vegas Municipal Court. During the bench trial, the City invoked the witness exclusion rule and Rice, Ross, and Hughes sat together in the hallway. While cross-examining Hughes after Rice and Rosser had testified, Kamide's counsel indicated that she had seen the three men talking together during a recess. Hughes answered that they had been reading Twitter together and had not been "talking about anything." Kamide's counsel did not ask any other questions regarding the witnesses' interaction or pursue the matter further.

         After the municipal court found Kamide guilty of all counts charged, he appealed to the district court, alleging for the first time a violation of NRS 50.155(1), the witness exclusion rule. The district court found that the rule had been violated. The district court concluded that prejudice had to be presumed because the record did not clearly show the absence of prejudice and reversed Kamide's convictions. The City filed this original writ petition challenging the district court's decision.


         The decision to consider a petition for a writ of mandamus lies within this court's complete discretion. Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008). The writ will generally not issue if the petitioner has a plain, speedy, and adequate remedy at law, see NRS 34.170, but there is no such remedy for the City in this matter as "district courts are granted exclusive final appellate jurisdiction in cases arising in Justices Courts and such other inferior tribunals."[1] Sandstrom v. Second Judicial Dist. Court, 121 Nev. 657, 659, 119 P.3d 1250, 1252 (2005) (internal quotation marks omitted). "[A]s a general rule, we have declined to entertain [writ petitions] that request review of a decision of the district court acting in its appellate capacity, " noting that we are mindful of "undermining] the finality of the district court's appellate jurisdiction." State v. Eighth Judicial Dist. Court (Hedland), 116 Nev. 127, 134, 994 P.2d 692, 696 (2000). But we have entertained such petitions in circumstances where the district court "has exercised its discretion in an arbitrary or capricious manner." Id. A decision is arbitrary or capricious when it is "founded on prejudice or preference rather than on reason, or" is "contrary to the evidence or established rules of law." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (citation and internal quotation marks omitted).

         We elect to exercise our discretion and consider whether the district court's appellate decision in this case was contrary to the evidence and established rules of law.[2]

         "It is well established that failure to object to asserted errors at trial will bar review of an issue on appeal." Brown v. State,114 Nev. 1118, 1125, 967 P.2d 1126, 1131 (1998) (internal quotation marks omitted). Nonetheless, an appellate "court has the discretion to address an error if it was plain and affected the defendant's substantial rights." Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks omitted); see also NRS 178.602. The plain error rule affords an appellate court discretion to consider an issue raised for the first time on appeal only if it makes three determinations: (1) there was error, (2) the error was plain or clear from the record, and (3) "the error affected the defendant's substantial rights." Green, 119 Nev. at 545, 80 P.3d at 95. ...

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