195 P.3d 315 (Nev. 2008), 47905, Cortinas v. State

Docket Nº:47905.
Citation:195 P.3d 315
Opinion Judge:By the Court, PARRAGUIRRE, J.:
Party Name:Armando CORTINAS, Jr., a/k/a Armando Benavides Cortinas, Appellant, v. The STATE of Nevada, Respondent.
Attorney:Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant., Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District Atto...
Case Date:October 30, 2008
Court:Supreme Court of Nevada

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195 P.3d 315 (Nev. 2008)

Armando CORTINAS, Jr., a/k/a Armando Benavides Cortinas, Appellant,


The STATE of Nevada, Respondent.

No. 47905.

Supreme Court of Nevada.

October 30, 2008

Rehearing Denied March 4, 2009.

Page 316

Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District Attorney, Clark County, for Respondent.




The primary issue we address in this appeal is whether harmless-error review applies when a general verdict based on multiple theories of liability may rest on a legally invalid alternative theory. To resolve this issue, we must address relevant federal cases and reconcile two prior decisions by this court.

The United States Supreme Court first addressed the impact of a general verdict that may rest on a legally valid or a legally invalid alternative theory of liability in Stromberg v. California, in which the Court held that a general verdict delivered under these circumstances must be set aside unless it is possible to determine that the jury based the verdict on a legally valid ground.1 In Keating v. Hood, the Ninth Circuit Court of Appeals reasoned that reversal is required in such cases unless the court is " absolutely certain" that the jury relied on a valid ground to reach its verdict.2

We adopted Keating's absolute certainty approach to Stromberg error in Bolden v. State. 3 After finding Stromberg error as the result of erroneous jury instructions on vicarious coconspirator liability for specific intent crimes, we reversed the defendant's convictions for several specific intent offenses that were committed by his coconspirators, explaining that we could not conclude with absolute certainty that the jury did not rely on the erroneous instructions when returning those verdicts. But in a more recent case, Nay v. State, 4 we reviewed an instructional

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error that could be characterized as Stromberg error for harmless error under the Chapman v. California 5 standard for harmless-error review. Accordingly, in Nay, after rejecting the use of an " afterthought" robbery as the predicate felony for felony murder, we reversed the defendant's first-degree murder conviction because we could not determine beyond a reasonable doubt that the jury would have returned the same verdict had it been properly instructed.

In this appeal, we take the opportunity to reconcile Bolden's absolute certainty approach to Stromberg error with Nay's reliance on traditional harmless-error review. Contrary to Bolden's implications, we view Stromberg error as a subcategory of trial error that is susceptible to harmless-error review under the Chapman standard as it has been applied in our instructional error cases. Thus, we conclude that harmless-error review applies when a general verdict may rest on a legally valid or a legally invalid alternative theory of liability. Accordingly, we retreat from Bolden's absolute certainty approach and reaffirm Nay.

Conducting harmless-error review in this case, we conclude beyond a reasonable doubt that the jury would have returned the same first-degree murder verdict had it not been misled that an afterthought robbery could satisfy the felony-murder rule. Although the general verdict form obscures the theory of liability that the jury selected, based on the overwhelming evidence of premeditated and deliberate murder presented at trial, as well as the jury's actual findings, presenting the jury with an invalid theory of felony murder was harmless error.

Separately, regarding the State's theory of robbery in this case, we reaffirm that the general intent and the taking required for robbery may occur after a victim is deceased so long as the use of force or coercion by the defendant-for whatever purpose-occurred while the victim was alive and the defendant took advantage of the terrifying situation he created to flee with the victim's property. Thus, we conclude that the district court did not improperly instruct the jury with regard to robbery.


On April 20, 2003, Kathryn Kercher's nude body was discovered in the desert south of Boulder City in an advanced stage of decomposition. Two clumps of blond hair were lying adjacent to the body, one of which appeared to have been cut from Kercher's head. Three stab wounds appeared on Kercher's back.

An autopsy revealed hemorrhages in various areas of Kercher's neck and at the base of her tongue. From this, the pathologist determined that Kercher died from asphyxia due to strangulation. According to the pathologist, prolonged strangulation with a ligature could have produced a distribution of hemorrhaging consistent with Kercher's wounds, assuming that Kercher struggled with her attacker, thus causing the ligature to move as it was held to her neck.

Shortly after Kercher's body was discovered, officers from the Las Vegas Metropolitan Police Department responded to a call that appellant Armando Cortinas was attempting to commit suicide. Cortinas approached the responding officers briskly. He then asked to be placed in handcuffs. While restrained, Cortinas stated that he wanted to kill himself, prompting police to call an ambulance.

When police officers asked him why he wanted to commit suicide, Cortinas stated that he had done something bad that he could not live with-he had killed a prostitute. Cortinas then stated that he dumped the victim's body in the desert near Boulder City and described the victim's tattoos. After the officers confirmed the victim's description with Boulder City Police, Cortinas was arrested.

Following his arrest, Cortinas consented to a search of his bedroom and volunteered that police would find the victim's earrings in a coin bank on his dresser. During the search, police recovered the earrings and, among other things, a 10- to 12-inch steel cable PVC pipe cutter with yellow handles attached at either end tucked between Cortinas' mattress and box spring. Cortinas later

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described this tool as a " garrote" that could be used for strangling.

During an interview, Cortinas' brother told police that Cortinas had a girlfriend over to the house a week earlier. At some point, the brother heard the girl scream, thought that the two were horseplaying, and told Cortinas to keep it down. In response, Cortinas turned up his music volume. Later, when he emerged from his bedroom, Cortinas told his brother that the girl had passed out and that he would use her car to take her home, then travel back on the bus.

At the police station after his arrest, Cortinas confessed to killing Kercher. Cortinas told police officers that he used his father's cellular phone to respond to a massage advertisement in CityLife magazine and arranged to meet with Kercher at his parents' home. When she arrived, Cortinas paid Kercher $150 for oral sex. Afterward, Cortinas approached Kercher from behind and, before she could scream, looped a nylon lanyard keychain " in a figure eight sort of manner" around her neck.6 In this fashion, Cortinas said that he strangled Kercher for nearly an hour, stopping at intervals to determine if she was still breathing and resuming if necessary " to finish it off." Finally, unable to kill Kercher by strangulation, Cortinas wrapped his arm around her, fell backwards onto his bed, and broke her neck.

According to Cortinas' confession, even this final attempt to take Kercher's life failed, as Kercher was still gasping for air. Despite her attempts to breathe, Cortinas taped Kercher's skirt around her head to absorb the blood that had begun to issue from her mouth. He then taped her wrists together in front of her body. With Kercher bound in this manner, Cortinas placed Kercher in the trunk of her car and drove to the Boulder City desert. Unsure that she was dead when he arrived in the desert, Cortinas stabbed Kercher three times in the back with a butterfly knife, so that she would " drown in her own blood" as it pooled in her lungs. Using the same knife, Cortinas then removed the skirt that he had taped around Kercher's head, cutting away clumps of her hair in the process.

Returning from Boulder City, Cortinas disposed of the lanyard, knife, and other evidence in different parts of Las Vegas and Henderson and parked Kercher's car around the corner from his parents' house. Before discarding Kercher's purse, Cortinas recovered his $150 as well as a bag of marijuana, which he later sold. Although he discarded Kercher's other jewelry, he kept her diamond earrings, eventually placing them in his coin bank.7 The next day, Cortinas moved Kercher's car to the Stratosphere Hotel and then offered it to a friend if the friend would agree to burn the car's contents to destroy his fingerprints.

The subsequent investigation further confirmed Cortinas' connection to the killing. In particular, the police confirmed that Kercher's DNA matched the DNA found on the earrings recovered from Cortinas' coin bank, a CityLife advertisement had recently run with Kercher's telephone number, and a call had been placed to that number from Cortinas' father's phone on the night that Kercher was killed.

The State charged Cortinas with first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. With respect to first-degree murder, the State pursued a conviction on alternative theories of willful, deliberate, and premeditated murder and felony murder. At trial, the jury instructions and the prosecutor's closing...

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