LOVELOCK — The Nevada Supreme Court dismissed the appeal filed by Pershing County DA Jim Shirley in connection to an evidence dispute.  The dismissal was filed on Wednesday (July 27).

The subject of the appeal was a decision made by  Judge Michael Montero to exclude evidence the DA attempted to use during the sentencing hearing of Nick Andrews.

CASE HISTORY: Andrews was convicted of voluntary manslaughter with use of a deadly weapon in connection to the 2006 shooting death of George Moritz.

Andrews did not pull the trigger that killed Moritz.  Instead, he is accused of aiding and abetting Matt Hutchinson, who was convicted of first-degree murder for the shooting and is currently serving life in prison without the possibility of parole.

Andrews pleaded guilty via Alford.  An Alford plea allows the defendant to maintain his innocence but acknowledges if the case were to proceed to trial the defendant could be convicted of a greater charge.

SENTENCING:  At the April 5 sentence hearing, Shirley attempted to cross-examine a defense witness using information from a Humboldt County criminal case involving Andrews.

Pershing County Public Defender Steve Cochran and Reno attorney Marc Picker, who represent the defendant, objected to the use of that evidence.

Picker argued a plea agreement specifically prohibited the state from using the facts of the Humboldt case in the Pershing case. He noted if the state intended to use the facts of the Humboldt case in Pershing – they’d have to prove those facts independently in Pershing.

Shirley’s response:  It’s already been done.

Going back to 2007, before the plea agreement, Nick Andrews went on trial for burglary and first-degree murder for aiding and abetting Matt Hutchinson.  Andrews was convicted of burglary but the jury failed to reach a unanimous verdict on the murder charge.

Before trial there was a Petrocelli hearing, which is used to determine what previous bad acts – if any -- would be discussed at trial.  The information from the Humboldt County case was at issue at the Petrocelli hearing.

Shirley attempted to use the information from the 2007 Petrocelli hearing at the 2011 sentencing hearing. After all, the Petrocelli hearing was all ready part of the record in the case..

Judge Montero excluded the evidence from the Petrocelli hearing.

THE APPEAL:  In order to exclude evidence, there has to be proof that, 1)  it violates Constitutional principles so it is suppressed, or 2) it violates certain evidentiary principles, such as hearsay, so it is excluded.

Evidentiary rulings are not appealable, but parties can appeal a suppression of evidence.

In order to appeal, Shirley had to convince the NSC Montero’s decision was a suppression of evidence.

The DA argued Judge Montero excluded the evidence on the grounds its inclusion would violate Andrews’s Constitutional right to due process (5^th and 14th Amendment) since the plea agreement specifically stated the facts of the Humboldt County case would not be used in the Pershing County case unless independently proven.

Because the evidence was excluded on Constitutional grounds, and not evidentiary grounds, the decision of the judges was appealable, Shirley argued.

The NSC did not address Shirley’s arguments at all.  They dismissed the appeal on the grounds they lacked jurisdiction to consider an appeal stemming from an evidentiary ruling.

Previous Posts/Pershing County Case:

District Court: Sentencing grinds to a halt over evidence dispute

NSC halts proceedings in Andrews sentencing

Pershing DA files appeal in evidence dispute  

NSC issues ruling in evidence dispute  

Prevoius Posts/Humboldt County Case:

Andrews sentenced for 2006 drive-by shootings