Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108 Nev.
53, 56, 825 P.2d 571, 573 (1992).
Here, evidence was presented that the victim was shot in the
chest in his apartment on Father's Day. A single bullet passed through a
security screen door, the right and left ventricles of the victim's heart, and
lodged in the living room wall. A .380-caliber cartridge case was found
outside the apartment. That night Jones' girlfriend told detectives that
the victim had previously burglarized their nearby apartment and still
owed Jones some money for the break-in. Three days before the murder,
at 9:15 p.m., Jones texted a friend and asked, "You still got that 380 bro."
A witness named Jimmie testified that the burglary occurred three days
before the murder and Jones questioned all of the occupants of the
apartment complex the following day to find out whether they saw
anything. Jimmie saw Jones outside the victim's apartment that
afternoon. Although he could not hear what Jones and the victim were
saying to each other, Jones looked more excited and was throwing his
arms around. A few days before the shooting, another witness, William,
overheard Jones tell another occupant of the apartment complex that
"someone owes me money, I'm getting my money."
On the day of the murder, the victim and his neighbor,
Loretta, were drinking a 32-pack of beer and carousing in his apartment
when they heard someone banging loudly on the door and window.
Jimmie testified that he saw Jones knocking on the victim's door and
asking him to come outside to talk with him. Loretta heard the man use
her name while he was yelling at the victim and heard the number five
which she believed was a reference to some denomination of money. The
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victim called 911 but was too drunk to communicate when the police
arrived around 9:18 p.m., and officers told him that he should file a
complaint when he was sober. Jimmie told detectives that he saw Jones
return to the victim's apartment a second time and continue knocking
after the police left and before it got dark. Loretta passed out and was
awoken by a loud bang. Although she did not remember what happened
next, other witnesses testified that she ran out of the apartment yelling,
"they shot him over five dollars." A call came in to dispatch at 10:38 p.m.
but by the time police and medical personnel arrived, the victim was dead.
Loretta's brother William was watching television and
drinking beer with his girlfriend when he heard the gunshot. He testified
that he looked out the window and saw a man with short hair standing by
a black car which drove off at a high rate of speed. Detective Ivie testified
that, on the night of the murder, William motioned for him to come closer,
looked up and down the street nervously, and told him that he saw Jones
run from the apartment complex to a black Dodge Neon and drive off at a
high rate of speed.
Although there were a number of credibility issues for many of
the witnesses, "it is the jury's function, not that of the court, to assess the
weight of the evidence and determine the credibility of witnesses."
McNair, 108 Nev. at 56, 825 P.2d at 573. We conclude that a rational
juror could infer from these circumstances that Jones committed second-
degree murder with the use of a deadly weapon. See NRS 200.010(1); MRS
200.030(2). The jury's verdict will not be disturbed on appeal where, as
here, sufficient evidence supports the conviction. Bolden v. State, 97 Nev.
71, 73, 624 P.2d 20, 20 (1981); see also Rugamas v. Eighth Judicial Dist.
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Court, 129 Nev. „ 305 P.3d 887, 893 (2013) (explaining that, if the
requirements of NRS 51.035(2)(a) are met, a statement inconsistent with
declarant's testimony is "admissible as substantive evidence"); Buchanan
v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003) (circumstantial
evidence alone may sustain a conviction).
Second, Jones contends that the district court erred by
refusing to include a jury instruction discussing voluntary manslaughter
and the State's burden of proof. On the third day of trial, Jones filed a
written objection to the State's proposed jury instructions, which cited
binding precedent and requested the district court to include the same
voluntary manslaughter instruction requested in Crawford v. State, 121
Nev. 744, 750, 121 P.3d 582, 586 (2005). The proposed instruction read:
If after the consideration of all the evidence you
have a reasonable doubt as to whether or not the
defendant acted in a heat of passion caused by the
requisite legal passion, you must return a verdict
of voluntary manslaughter. This is because the
State has the burden of proving beyond a
reasonable doubt that the defendant did not act in
the heat of passion.
The State contends that the district court did not abuse its discretion by
refusing to proffer this additional instruction because it was redundant. It
argues that two other instructions were sufficient to put the jury on notice
of the substance of Jones' proposed instruction because those instructions
informed jurors that they must return a verdict of voluntary manslaughter
if they have a reasonable doubt about whether Jones committed murder
and explained that a killing committed in the heat of passion will reduce
homicide to voluntary manslaughter. We conclude that Jones' proposed
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instruction is not redundant with these two jury instructions. 2 Even
though the principle of law included in Jones' proposed instruction could
be inferred by all of the instructions provided to the jury, the district court
may not refuse Jones' proposed instruction on this ground. See Crawford,
121 Nev. at 754, 121 P.3d at 588-89 (overruling Stroup v. State, 110 Nev.
525, 528, 874 P.2d 769, 771 (1994), and concluding that "Wurors should
neither be expected to be legal experts nor make legal inferences with
respect to the meaning of the law; rather, they should be provided with
applicable legal principles by accurate, clear, and complete instructions
specifically tailored to the facts and circumstances of the case"). "This
court has consistently held that the defense has the right to have the jury
instructed on its theory of the case as disclosed by the evidence, no matter
how weak or incredible that evidence may be." Id. at 751, 121 P.3d at 586
Additionally, we note that the two instructions cited by the State
2
erroneously suggest that "[Ole crime of murder may include the crime of
voluntary manslaughter" and voluntary manslaughter is not a type of
homicide. The term homicide includes voluntary and involuntary
manslaughter. See NRS 200.010 to NRS 200.260; Alford v. State, 111 Nev.
1409, 1412, 906 P.2d 714, 715 (1995) (discussing three categories of
homicide; first-degree murder, second-degree murder, and voluntary
manslaughter). The crime of murder never includes voluntary
manslaughter. See NRS 200.010(1) (defining murder as killing "[w]ith
malice aforethought, either express or implied"); NRS 200.020(2)
(explaining that "[m]alice shall be implied when no considerable
provocation appears" (emphasis added)); NRS 200.040 (defining
manslaughter as killing "without malice express or implied"); State v.
Salgado, 38 Nev. 64, 81, 150 P. 764, 765 (1915) (explaining that express
malice and irresistible passion cannot coexist), overruled on other grounds
by Bryant v. State, 72 Nev. 330, 333, 305 P.2d 360, 361 (1956).
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(internal quotation marks omitted). Therefore, we conclude that the
district court abused its discretion by refusing to proffer the instruction.
We consider the totality of the circumstances and the entire
record to determine whether this error was harmless beyond a reasonable
doubt. See id. at 756 n.30, 121 P.3d at 590 n.30. The entirety of the
State's argument in support of harmless error is that, "[biased on the
evidence against Appellant here, the jury would have reached the same
verdict notwithstanding Appellant's redundant proffered instruction." It
does not analyze the facts of this case with respect to the elements of
voluntary manslaughter. In this case there were no eyewitnesses to the
shooting itself The only evidence presented was that Jones was upset
about the victim burglarizing his apartment, upset that the victim had not
paid Jones the money he owed, worried that he only had a hundred dollars
to pay the rent for the apartment where he lived with his girlfriend and
two young children, and angrily banged on the victim's door and window
demanding to talk with the victim before and after the victim called the
police. According to the State's interpretation of the evidence during
closing arguments, Jones was angrily banging on the door for about ten
minutes before the victim opened the door and Jones fired a single shot
through the security door killing the victim. According to Loretta, the
victim sounded upset when he spoke to the 911 operator shortly before the
shooting. At the time of his death, the victim had a .321 percent blood-
alcohol content. In light of the State's argument and the paucity of
evidence as to "whether or not, at the time of the killing, the reason of the
accused was obscured or disturbed by a passion to such an extent as would
cause the ordinarily reasonable person of average disposition to act rashly
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and without deliberation and reflection and from such passion rather than
from judgment," Ricci v. State, 91 Nev. 373, 383 n.10, 536 P.2d 79, 84 n.10
(1975) (defining "heat of passion"), we conclude that the State has failed to
satisfy its burden to demonstrate that the district court's failure to include
Jones' proffered instruction was harmless beyond a reasonable doubt.
Therefore, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
J.
Parraguirre Saitta
CC: Hon. Valerie Adair, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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