IN THE SUPREME COURT OF THE STATE OF NEVADA
LEONARDO CARDOZA, No. 66463
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
APR 1 4 2016
TRACE K LNDPMAN
CLERK OF SUPREME COURT
BY _StYyttle____
DEPUTY CLER
ORDER AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with the use of a deadly weapon and
attempted murder with the use of a deadly weapon. First Judicial District
Court, Carson City; James E. Wilson, Judge.
First, appellant Leonardo Cardoza contends that the
information was not adequate to charge first-degree murder. He argues
that the charging document failed to allege that the murder was
premeditated or that Cardoza deliberated. We disagree. The challenged
information included "a statement of the acts constituting the offense in
ordinary and concise language" and put Cardoza on notice of the State's
theory of prosecution. Viray u. State, 121 Nev. 159, 162, 111 P.3d 1079,
1082 (2005) (quoting Jennings v. State, 116 Nev. 488, 490, 998 P.2d 557,
559 (2000)). An open murder charge need not specify the degree of
murder. See, e.g., Biondi v. State, 101 Nev. 252, 255, 699 P.2d 1062, 1064
(1985).
'Cardoza also contends that the State engaged in prosecutorial
misconduct for drafting the inadequate charging document. As we
continued on next page...
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Second, Cardoza contends that the State engaged in
prosecutorial misconduct in successfully seeking a cause challenge to a
Native-American venireperson and using peremptory challenges to
dismiss two Hispanic venirepersons in violation of Batson v. Kentucky, 476
U.S. 79 (1986). We conclude that this argument lacks merit. As Cardoza
did not raise a Batson objection in the district court, he waived it. See
Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (concluding that
Batson challenge was untimely where objection to peremptory strikes was
made after excluded jurors dismissed and jury had been sworn); see also
Watson v. State, 130 Nev., Adv, Op. 76, 335 P.3d 157, 166 (requiring
objecting party to establish a prima facie case of discrimination under
first-step of Batson analysis in the district court).
Third, Cardoza contends that the district court erred in
permitting him to testify without adequately instructing him on his right
to remain silent. We discern no plain error. See NRS 178.602; Green v.
State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). The district court twice
informed Cardoza of his right to testify or remain silent and these
colloquies clearly indicated that the decision to testify rested solely with
Cardoza. See generally Phillips v. State, 105 Nev. 631, 632-33, 782 P.2d
381, 382 (1989) (discussing the privilege against self-incrimination and the
right to testify).
Fourth, Cardoza contends that the district court erred in
instructing the jury on the elements of involuntary manslaughter and
...continued
conclude that the information was not inadequate, Cardoza failed to
demonstrate prosecutorial misconduct.
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felony murder. 2 We discern no plain error. The challenged instruction
accurately states Nevada law. See NRS 200.070.
Fifth, Cardoza argues that the district court plainly erred in
instructing the jury on the elements for first-degree murder, See Valdez v.
State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (reviewing
unobjected-to error for plain error affecting substantial rights). In Byford
v. State, this court disapproved of the Kazalyn instruction 3 on its
description of the mens rea required for a first-degree murder conviction
based on willful, deliberate, and premeditated murder, and provided the
district courts with instructions to use in the future. 116 Nev. 215, 233-
37, 994 P.2d 700, 712-15 (2000). Specifically, this court concluded that the
Kazalyn instruction, by defining only premeditation, impermissibly
conflated the concepts of deliberation and premeditation and thus blurred
the distinction between first- and second-degree murder. Id. at 235, 994
P.24 at 713. Accordingly, this court set forth instructions that defined
2 Instruction 20 reads as follows:
Involuntary manslaughter is the killing of a
human being, without any intent to do so, in the
commission of an unlawful act, or a lawful act
which probably might produce such a consequence
in an unlawful manner.
Where the involuntary killing occurs in the
commission of an unlawful act, which, in its
consequences, naturally tends to destroy the life of
a human being, or it is committed in the
prosecution of a felonious intent, the offense is
murder.
3Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).
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willfulness, deliberation, and premeditation. Id. at 236-37, 994 P.2d at
714-15.
We conclude that the district court erred in instructing the
jury. The given first-degree murder instruction referred to the "willful,
deliberate and premeditated' elements," and instructed that they exist
where "there was a determination and design to kill, distinctly formed in
the mind at any moment before the act that caused death was committed."
It did not provide a definition of deliberation. Thus, the given instruction
was essentially the Kazalyn instruction which this court rejected in
Byford, 14 years before Cardoza's trial.
This error was also plain. See Patterson v. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) (providing that plain error must be
"so unmistakable that it reveals itself by a casual inspection of the
record"). As first-degree murder was the most severe charge Cardoza
faced, this instruction was arguably the most prominent. Further, this
court specifically set forth an instruction for district courts to follow over a
decade before trial. Byford, 116 Nev. at 236-37, 994 13 .2d at 714-15. In the
years since Byford, this court has repeatedly reaffirmed the Byford
instruction as the proper instruction to use after that decision. See Nika v.
State, 124 Nev. 1272, 1283-87, 198 P.3d 839, 847-50 (2008); Rippo v. State,
122 Nev. 1086, 1096-97, 146 P.3d 279, 286 (2006); Randolph v. State, 117
Nev. 970, 985-86, 36 P.3d 424, 434 (2001); Leonard v. State, 117 Nev. 53,
74-75, 17 P.3d 397, 410-11 (2001).
Lastly, we conclude that this error prejudiced Cardoza's
substantial rights. See Valdez, 124 Nev. at 1190, 196 P.3d at 477 ("[Amn
error that is plain from a review of the record does not require reversal
unless the defendant demonstrates that the error affected his or her
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substantial rights, by causing actual prejudice or a miscarriage of justice."
(internal quotation marks omitted)). "A plain error affects substantial
rights if it had a prejudicial impact on the verdict when viewed in context
of the trial as a whole." Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58
(2005) (internal quotation marks omitted). The evidence of deliberation is
not overwhelming. Cardoza had been drinking alcoholic beverages
throughout the afternoon and evening. His blood alcohol content was over
the legal limit several hours after the incident. Further, Cardoza's
inexplicable behavior after he struck the victim—wandering around
outside his vehicle, fleeing in his vehicle, crashing into a fence, and
stumbling back to the victim's home—is not emblematic of a willful,
deliberate, and premeditated murder. Considering this evidence, the jury
may not have found Cardoza guilty of first-degree murder had it been
instructed that he must have weighed the reasons for or against his action
and that an unconsidered and rash act is not deliberate. Byford, 116 Nev.
at 236, 994 P.2d at 714. We therefore reverse the first-degree murder
conviction and remand for a new trial on that charge. 4
4 Cardoza also contends that the State engaged in prosecutorial
misconduct for arguing in support of the challenged instructions. As this
argument did not occur in the presence of the jury, Cardoza failed to
demonstrate that the any alleged misconduct "so infect[ed] the proceedins
with unfairness as to make the results [of the trial] a denial of due
process." Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 72 (2008)
(internal quotation marks omitted).
Cardoza also contends that cumulative error warrants reversal of
his convictions. Other than the first-degree murder instruction, Cardoza
failed to demonstrate error, therefore, there is nothing to cumulate.
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Having considered Cardoza's contentions and concluded that
relief is warranted, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
1 , J.
Douglas
cc: Hon. James E. Wilson, District Judge
Allison W. Joffee
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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