LOVELOCK - The verdict is in. The Nevada Supreme Court upheld a June 2011 ruling issued by Sixth Judicial District Court Judge Richard Wagner; calling the Pershing County District Attorney's Office's appeal "overambitious" and "disingenuous."
The case before the Nevada Supreme Court stems from charges filed against Nickolas Andrews, who was found to be in possession of a cellphone while in custody in the Pershing County Jail.
In March 2011, Andrews was charged with a class B felony, violation of NRS 212.093 possessing a cellphone while in custody, by Pershing County District Attorney Jim Shirley on behalf of the Pershing County Sheriff's Office.
NRS 212.093 prohibits prisoners from possessing "any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or an other tool or item adapted, designed or commonly used for the purpose of escaping" from custody.
The district attorney's office held that a cellphone sufficed as an item "commonly used for the purpose of escaping."
Andrews's attorney, Pershing County Public Defender Steven Cochran, filed a pre-trail petition for a writ of habeas corpus arguing that NRS 212.093 is unconstitutionally vague and overboard and that the statute does not prohibit the possession of cellphones in county jails and asked for dismissal of the charge.
Wagner ruled that the statute was unconstitutionally vague pertaining to the portion stating, "commonly used for the purpose of escaping" and dismissed the charge. The dismissal, according to court documents, was "due to the overly broad meaning and vagueness in which the phrase could be interpreted."
The Nevada Supreme Court declined to rule on the constitutionally of NRS 212.093 but justices wrote in their opinion brief, "by the statute's plain language, it does not prohibit the possession of cellphones. Thus, the district court correctly dismissed the charge against Andrews on that ground."
Andrews's preliminary hearing was held March 31, 2011, and the case was bound over to district court for trial.
"The case never should have been bound over after the preliminary hearing in justice court had the proper ruling been made," Cochran said in a recent interview.
In his answer brief filed with the Nevada Supreme Court, Cochran states, "Over counsel's (Cochran's) objections, improper expert witness testimony and hearsay evidence was used to support bind over to the district court."
According to court documents, Cochran argued that testimony from Pershing County Sheriff's Deputies was not expert testimony on whether cellphones were "commonly used for the purpose of escaping."
In his 23 page appeal brief filed Oct. 25, 2011, with the Nevada Supreme Court, Shirley argued that the statute was not unconstitutionally vague because "a person of ordinary intelligence could read the language and understand that they are not to possess a cellular phone in prison because it is an item that is commonly used for escape, even if the individual had no desire to escape."
Cochran, in his 10-page answer brief filed, Nov. 16, 2011, with the Nevada Supreme Court, argued that the statute makes no mention of a cellphone as a prohibited item. The statute mentions a key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder and hook.
Cochran argued that these items are used to physically manipulate an escape from jail, whereas a cellphone could not be used in that manner. Cochran referenced NRS 212.165, which prohibits inmates in the Nevada Department of Corrections from possession of cellphones.
"A reasonable conclusion is that the Legislature chose not to criminalize possession of a cellphone in a county jail by not including such language in either NRS 212.093 or NRS 212.165," Cochran stated in his brief.
The district attorney didn't waste any time appealing the District Court's ruling. The very next day after Wagner's June 28 ruling, the DA's office filed its first documents for the appeal. The DA's office worked on the case throughout the next year.
"We spent a good deal of time as we do on any case that goes up on appeal. Because we only track hourly times on the Burning Man cases, I could not estimate how much time we spent," Shirley said in a recent interview.
Cochran said he felt that the whole trial from the point of being bound over to the district court was a waste of tax payer money.
"I did not file the appeal to the Supreme Court. That was the district attorney's appeal, not mine. District Court Judge Wagner made the correct ruling in dismissing the case, but the district attorney was not satisfied with that decision and decided to spend the taxpayer resources on appealing the case to the Nevada Supreme Court. In this regard, I think it is even more important to note that the Nevada Supreme Court called the district attorney's argument as both "overambitious" and "disingenuous," thereby compounding the waste of taxpayer resources," he said.
Cochran said he spent about 30 hours in preparing this appeal.
"Supreme Court briefs can vary in terms of the time it takes. The ever-changing procedural rules and compliance with them is the biggest challenge, more so than the substantive brief. This was relatively quick and easy, seeing as how I was merely responding to Jim Shirley's appeal, in which his appeal was based, in part, on a videogame," Cochran said.
Cochran references to a portion of the District Attorney's Office's appeal which states, "The use of cellular phones for escape has even become part of our pop culture. In the video game, 'Escaping the Prison' the player gets to choose a tool, a file, a drill and a cellular phone that will aid in the escape."
When asked if he had any regrets about taking the case to the Nevada Supreme Court, Shirley initially said no, but added, "While we lost the appeal, we did not lose on the issue we appealed the case on. We appealed the ruling that the statute was unconstitutionally vague and overly broad. The Supreme Court upheld us on those issues and went on to decide it on a separate issue. If I were to express regret, it would be that we did not anticipate the court's ruling in this manner. Their questions did not suggest it," Shirley said.
Shirley said they would not be appealing the ruling of the Nevada Supreme Court.
"While I disagree with the ruling, they are elected to that capacity and we will abide by their ruling," Shirley said.
Andrews was in the Pershing County Jail awaiting sentencing for his part in the 2006 murder of George Moritz, a Winnemucca teen. Andrews was 19 at the time of the incident in 2006. He was sentenced to 24 - 60 months on Oct. 20, 2011, on one count of voluntary manslaughter and one count of dangerous weapons enhancement. He was also sentenced to 36 - 90 months on Oct. 16, 2007, for burglary stemming from the 2006 incident.
Information for this article was taken in part from documents on the Nevada Supreme Court website http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=26863
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