State v. Morgan (Joseph)

• Court: Nevada Supreme Court
• Decided: February 12, 2015
• Docket: 66245
• Status: Unpublished

Opinion

The district court's determination involved a matter of law which we review de novo. See Sheriff V. Marcus, 116 Nev. 188, 192, 995 P.2d 1016, 1018 (2000). Here, the grand jury was properly instructed on the elements of the crime charged in count I pursuant to NRS 200.620(1), see also NRS 179.425(1)(b), and the district court's determination otherwise was erroneous.' See NRS 172.095(2) (providing that the State must instruct the grand jury of the elements of the offense alleged); Clay V. Eighth Judicial Dist. Court., 129 Nev. , 305 P.3d 898, 904 (2013) ("Nevada is among several jurisdictions that require the prosecutor to instruct the grand jury on the elements of the crime."). The additional language in "the missing part of the statute" does not refer to elements of the offense, and we do not agree that the jury was potentially misled by the instructions or that the integrity of the grand jury proceedings were compromised. See Clay, 129 Nev. at , 305 P.3d at 905. Therefore, we conclude that the district court erred by granting in part Morgan's petition and dismissing count I. In response to the State's appeal, Morgan contends that he was entitled to the granting of his petition because the grand jury was not (1) informed that the victim consented to engaging in either a wire or oral

1 The grand jury was instructed as follows: "It is unlawful for any person to knowingly and willfully intercept or attempt to intercept any wire communication." The grand jury was also instructed that an exception to the prohibition exists for "an investigative or law enforcement officer in the ordinary course of his or her duties." The charging indictment, provided to the grand jury, alleged that Morgan "did unlawfully, willfully, knowingly and feloniously intercept or attempt to intercept any wire communication, to wit: On or about December 11, 2012, the defendant recorded a telephone call between himself and [the victim] without the consent of all parties to the call."

SUPREME COURT OF NEVADA 2 (0) 1947A ze communication, (2) provided with a definition of "oral communication," and (3) properly instructed about the law enforcement exception to NRS 200.620. The district court did not specifically address these claims below. Nevertheless, based on our review of the record, we conclude that Morgan's claims lack merit. Accordingly, we ORDER the judgment of the district court REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.

J. Saitta

Pieku tiAp Gibbolis Pickering

cc: Hon. Jessie Elizabeth Walsh, District Judge Attorney General/Carson City Attorney General/Las Vegas Turco & Draskovich Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1.947A e