Wednesday, Sept. 8, 2004 | 10:57 a.m.
CARSON CITY -- The Nevada Supreme Court granted a new trial to a man convicted of murder and handed down decisions in four other Las Vegas cases Tuesday.
In a 2-1 decision, the court overturned the murder conviction of Kasard O. Brown because of a faulty instruction to the jury. Brown had been sentenced to life in prison without the possibility of parole in the killing of his girlfriend in Las Vegas three years ago.
Court records say Brown fired a shotgun into the back of Rebekah Joy Hanson's head on Sept. 8, 2001, and he told authorities he believed an intruder was in his apartment. Throughout the trial he maintained the shooting was an accident.
Two state Supreme Court justices said District Judge Michael Cherry did not properly instruct the jury on the state's burden of proof concerning the accident defense.
Justices Nancy Becker and Deborah Agosti wrote, "Similar to self-defense, once Brown proffered sufficient evidence from which the jury could conclude that the shooting was an accident, the state has the burden of proving beyond a reasonable doubt that the shooting was not an accident."
Justice Mark Gibbons dissented, saying he believed the jury instructions in their totality "properly set forth the state's burden of proof."
In a second case the court denied the petition of Devan Rivera, sentenced to two consecutive life terms with the possibility of parole for a killing in Las Vegas.
Rivera, who was 16 at the time, and Kevin Houser drove Ismael Arevinas into the desert, where he was shot to death in 1996. Rivera, according to court records, was angry because Arevinas reportedly "hit on" his girlfriend.
The court rejected Rivera's arguments that he wasn't informed of the range of punishment at the time he pleaded guilty and that he was not advised of his right to a jury trial.
In a third Las Vegas case, the court upheld the decision of the Las Vegas City Council to grant a special-use permit for the Three Angry Wives tavern in the Boca Park Marketplace. The court affirmed the decision of District Judge Stewart Bell, who had rejected the lawsuit brought by the owners of Bilbo's Bar.
The Las Vegas ordinance requires a 1,500 foot separation between bars. Higco Inc. had received the special-use permit to open Three Angry Wives within 900 feet of Bilbo's.
Bell had dismissed Bilbo's suit, ruling it lacked standing to bring the complaint.
Bilbo's owners maintained they had standing because their property interest would be affected by the proximity of a competitor. The Supreme Court agreed with Bell saying the ordinance was adopted to "protect the public from a conglomeration of taverns, not to economically protect one tavern from another."
In a fourth case, the court granted the appeal of two Las Vegas physicians to be dismissed from a malpractice suit filed by the widow of a man who died after two surgeries on his foot.
The court said that Dr. Gary Symonds and Dr. Edward E. Holden should be dismissed from a suit brought by Suzanne Johnson because the complaint against the two was barred by the statute of limitation.
The court, however, refused to dismiss the complaint against Dr. Scott Hambrecht, a podiatrist, and Southwest Medical Associates.
Joshua Johnson died in December 1998 after three surgeries on his left foot, two of them performed by Dr. Hambrecht.
Johnson's wife brought the first malpractice suit in December 2000 but didn't make Symonds and Holden defendants until March 2003.
The law says defendants must be sued within four years of the injury or death.
The court, in a 2-1 decision, said Symonds and Holden were "impermissibly added" to the action four and a half years after Joshua's death.
As happened with the Kasard Brown case, Justices Becker and Agosti agreed in the majority and Justice Gibbons dissented. Gibbons wrote that he would not have intervened in the case at this point.
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