Moore v. State

Citation105 Nev. 378,776 P.2d 1235
Decision Date30 June 1989
Docket NumberNo. 18740,18740
PartiesValerie MOORE, Eileen Rene Cunningham, and James Raymond Mayfield, Appellants, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

David Parraguirre, Public Defender and Jane McKenna and Bert George, Deputy Public Defenders, Reno, for appellant Moore.

Richard Legarza, Reno, for appellant Cunningham.

Ohlson & Edmiston, Reno, for appellant Mayfield.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., and Gary H. Hatlestad, Deputy Dist. Atty., Reno, for the State.

OPINION

PER CURIAM:

The Reno police discovered the body of Kathleen Kennedy, lying face down in an alley. Kennedy had suffered numerous injuries, but died as a result of a laceration to her face and bleeding inside the skull. A jury convicted the three appellants, Valerie Moore, Eileen Cunningham and James Mayfield, of second degree murder with the use of a deadly weapon, namely a large stone or a tree stump. For the reasons expressed below, we affirm the convictions of Moore and Cunningham, and we reverse Mayfield's conviction.

On the afternoon of February 27, 1987, Kennedy, the victim, was drinking with appellants and other acquaintances who lived on Elko Avenue in Reno. Four of the women, Kennedy, Moore, Cunningham and Kim Parks, went next door to Parks' apartment. While at the apartment, they continued to drink. Parks put Cunningham's daughters, Rene and Stephanie Winston, in the bedroom to watch television.

At trial, four eyewitnesses, namely Moore, Parks, Rene and Stephanie, testified regarding the events which led to Kennedy's death. They discussed a fight in the apartment involving the four women. Although testimony differed on the particulars of the fight and what subsequently occurred, the jury evidently believed the following testimony.

Rene and Stephanie testified that once the fight ended, all of them left Parks' apartment. Rene and Stephanie stated that they saw their mother and Moore carry Kennedy to a nearby common area where a pickup truck and tree stump were located. They testified that Moore picked up a large rock and threw it at Kennedy. However, neither girl said that she saw the rock strike Kennedy.

Subsequently, the four eyewitnesses and Cunningham walked to a nearby convenience store. All four eyewitnesses testified that shortly after they returned from the store, Mayfield arrived. Parks further testified that Mayfield asked Cunningham where Kennedy was. Mayfield and Cunningham left for a moment and returned with Mayfield dragging Kennedy by the feet and Cunningham kicking her. According to Parks, when they stopped by the front steps, both Cunningham and Mayfield kicked Kennedy several times, "just thumping her all over."

Parks stated that she heard the others make the following comments. Mayfield said to Cunningham: "I love you, and I don't mind doing 20 years for you." Cunningham replied: "We might as well finish the bitch off." Moore chimed in: "You might as well kill the bitch." Parks testified that Mayfield and Cunningham then dragged Kennedy to the back area. However, Parks did not know what happened back there.

The physical evidence supported this version of the events. When the police investigated the crime scene, they discovered a pool of blood around the body. Additionally, they found a large amount of blood around the tree stump in the common area. They also found blood spattered on the pickup truck and on and about the rock, both located near the tree stump. Finally, the police traced drag marks and a blood trail which ended in a pool of blood directly in front of the steps to Parks' apartment.

On appeal, Moore argues that the district court erred in finding Cunningham's daughters, Stephanie and Rene Winston, competent to testify. Specifically, Moore states that at the time of the murder, Stephanie was six years old and Rene was eight years old. According to Moore, the voir dire and testimony of the girls reveal serious deficiencies in their ability to receive just impressions of events and truthfully relate them. We disagree.

"The standard of competence of a child witness is that the child must have the capacity to receive just impressions and possess the ability to relate them truthfully." Smith v. State, 100 Nev. 570, 573, 688 P.2d 326, 328 (1984). (Citation omitted.) This court will not disturb a trial court's finding of competency to testify absent a clear abuse of discretion. Id. On appeal, we are not confined to a review of the voir dire examination. Wilson v. State, 96 Nev. 422, 423, 610 P.2d 184, 185 (1980). Rather, we may also look to subsequent testimony which may support a finding of competence "if clear, relevant and coherent." Id. (Citation omitted.)

Having reviewed the voir dire examinations of Stephanie and Rene and their subsequent testimony, we conclude that both witnesses were competent to testify. A detective interviewed the girls on three occasions. He testified that Stephanie was disjointed in her thoughts in that she did not comprehend time very well. However, the detective also stated that Stephanie had very good recall, and in all three interviews, Stephanie's recollections were consistent. Stephanie's trial testimony, which was generally clear and relevant, further supports the district court's finding of competence.

The majority of Rene's trial testimony was coherent and lucid, even though she could not remember some of her grand jury testimony. However, the grand jury testimony that she could not recall concerned incriminating actions taken by her mother and Mayfield. Thus, these omissions raised an issue as to Rene's credibility, not her competency. Accordingly, the district court correctly admitted the testimony of Stephanie and Rene Winston.

Cunningham contends that the legislature never intended the deadly weapon enhancement provision to apply to murders committed with a large stone or tree stump. Rather, she maintains that "deadly weapons" should refer only to instruments which by their very nature are deadly as a matter of law. Cunningham also argues that insufficient evidence exists to support a finding that she used a deadly weapon to murder Kennedy. We disagree.

When the legislature enacted NRS 193.165, the deadly weapon enhancement provision, it declined to define "deadly weapon," leaving this task to the judiciary. Recently, we adopted a functional approach to determine whether an instrument was a "deadly weapon." Clem v. State, 104 Nev. 351, 357, 760 P.2d 103, 106-107 (1988). Applying the functional test, the court considers how an instrument was used and the facts and circumstances of its use. Id.

In Clem, we held that a red-hot table fork and a heated electric iron were deadly weapons. Id. at 357, 760 P.2d at 107. Both instruments can cause serious bodily injury or death, as evidenced by the victim's burns. Id. Moreover, the evidence at trial clearly indicated the defendant's intent to injure and disfigure with the iron and fork. Id. Therefore, we concluded that defendant's sentences were properly enhanced. Id.

Consequently, Clem refutes Cunningham's contention that we should limit "deadly weapons" to those instruments that are inherently deadly. As with Clem's use of the heated table fork and iron, Moore's use of the large stone demonstrated an intent to injure Kennedy. Accordingly, the rock was a deadly weapon.

Additionally, Cunningham correctly asserts that all testimony concerning the rock involved Moore's use or possible use of a rock. Further, she argues that the record fails to show that she was close enough to Moore when Moore had the rock to be aware of Moore's possession or use of the rock. Finally, Cunningham contends that the parties presented no evidence that she had the ability to exercise control over the rock.

In Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979), we stated our position as to what constitutes "possession" in cases involving crimes committed with a deadly weapon.

Therefore, in our view, the...

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