871 P.2d 306 (Nev. 1994), 23153, Ewish v. State

Docket Nº:23153.
Citation:871 P.2d 306, 110 Nev. 221
Party Name:Joseph Anthony EWISH and Timothy Edward Webb, Appellants, v. The STATE of Nevada, Respondent.
Case Date:March 30, 1994
Court:Supreme Court of Nevada
 
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Page 306

871 P.2d 306 (Nev. 1994)

110 Nev. 221

Joseph Anthony EWISH and Timothy Edward Webb, Appellants,

v.

The STATE of Nevada, Respondent.

No. 23153.

Supreme Court of Nevada.

March 30, 1994.

Page 307

[Copyrighted Material Omitted]

Page 308

Laura W. FitzSimmons, Las Vegas, for appellant Ewish.

Mace J. Yampolsky, Las Vegas, for appellant Webb.

Frankie Sue Del Papa, Atty. Gen., Carson City; Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., and Melanie Andress, Deputy Dist. Atty., Clark County, for respondent.

OPINION

YOUNG, Justice:

FACTS

At approximately 4:30 a.m. on March 3, 1990, appellants Joseph Anthony Ewish ("Ewish") and Timothy Edward Webb ("Webb"), accompanied by Mitchell Nelson ("Nelson"), threw a molotov cocktail into the home of Eppie Lopez ("Lopez") in Las Vegas. The resulting fire killed Lopez and his father. Six other persons were in the house at the time of the fire.

After leaving the Lopez residence, all three men drove to Ricky Newton's home in Las Vegas and threw another molotov cocktail through a bedroom window. A corresponding fire erupted at approximately 4:53 a.m. and was extinguished. No injuries resulted. Three people were in the Newton home at the time of the fire.

The firebombing of the Lopez household was the result of a dispute over marijuana. On an earlier date, Webb was intoxicated and drove Ewish's car into the lube pit of a Las Vegas service station. The station workers summoned the police. Fearful of police involvement, Webb entrusted his friend Lopez with a quarter pound of marijuana resting in the trunk of Ewish's car. Lopez climbed the wall of the service station, with marijuana in hand, and escaped police detection. Later, both Webb and Ewish confronted Lopez about the contraband's whereabouts. Lopez claimed he lost the marijuana during the confusion of his escape. Disbelieving their friend, Webb and Ewish threw a molotov cocktail into Lopez's house.

With respect to the firebombing of Ricky Newton's household, the motive is not as clear. Apparently, a feud broke out between two factions of friends, with Ricky Newton being at odds with Nelson, Webb, and Ewish. Disparaging comments were made about someone's girlfriend. The dispute escalated into a scheduled street fight which took place at a Las Vegas junior high school in February 1990. This fight erupted into many tangential scufflings, and, in the middle of these events, Ewish pointed a rifle at Newton's van and threatened to "shoot it up." Webb was in Ewish's car at this time. This exchange was apparently the precursor to the Newton firebombing.

Ewish, Webb, and Nelson were all charged with two counts of arson, two counts of murder with a deadly weapon, and nine counts of attempted murder with a deadly weapon (the nine [110 Nev. 224] counts equalling the number of uninjured people occupying the Lopez and Newton households). The district court refused to try the three defendants separately, wanting to retain the administrative advantages of a joint trial. Yet to protect against the somewhat antagonistic trial defenses of the defendants, the court opted to utilize a multiple jury system. In accordance therewith, three juries were empaneled and assigned to an individual defendant. Common evidence was presented to all three juries. Yet when the court felt that justice or procedure required it, the juries were separated and individually considered evidence particular to their defendant's trial.

At trial, the State provided overwhelming evidence establishing Webb's direct involvement in both crimes. In fact, Webb himself took the stand and admitted that he threw the Newton firebomb. He also admitted being

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present at the Lopez bombing. In addition, there was testimony establishing that Webb wanted to get even with Lopez and even boasted about his participation in starting the fires.

Webb's sole defense at trial was that he was too intoxicated to form the specific intent necessary to commit arson or murder. Webb testified that he had been drinking heavily and smoking "primos" (cocaine mixed with marijuana) for two days prior to the firebombings. Webb claimed that he was passed out in the back seat of Ewish's car during the Lopez firebombing and had no recollection of those surrounding events. He allegedly regained consciousness sometime thereafter, immediately before throwing the molotov cocktail into the Newton home. Webb maintained that he was in a "cocaine coma" and his only recollection was being handed the firebomb and throwing it through a bedroom window.

This aspect of Webb's testimony was corroborated to a limited degree. His counsel presented expert testimony characterizing Webb as a "chronic alcoholic" who could have been experiencing an intoxication blackout during the crimes. There was also testimony that one of the three defendants was passed out during some of the night's events.

Although Ewish did not testify in his own behalf, he presented a similar defense at trial. In essence, Ewish claimed that due to his mental impairment, meek personality, and intoxication on the night of the crimes, he could not have formed the specific intent necessary to aid in and abet murder or arson. Ewish presented both expert and lay witness testimony in an attempt to support this theory. These witnesses testified that Ewish had a mental age of thirteen, a sixth grade reading level, was susceptible to control of others, and had other related mental deficiencies.

The State refuted these claims by providing overwhelming [110 Nev. 225] evidence establishing Ewish's direct and active participation in both firebombings. It was established that Ewish was present during both criminal events, had a motive for the Lopez firebombing, acted as a lookout, and later boasted about his involvement in the crimes. In addition, the State presented evidence that Ewish was holding down a job, could write and spell with accuracy, had served in the military, and had no mental deficiencies prohibiting him from acting willfully and with deliberation.

After considering the evidence, each of the three juries returned individual verdicts. Ewish was convicted of two counts of murder while using a deadly weapon, two counts of arson, and nine counts of attempted murder. 1 Webb was convicted of two counts of arson and two counts of murder while using a deadly weapon, but was acquitted of the attempted murder charges. Nelson was acquitted of all charges and is not a party to this appeal.

Webb and Ewish each received two life sentences with the possibility of parole for the first degree murder convictions. These sentences were enhanced with two consecutive terms of life for using a deadly weapon. Additionally, each received two twelve-year prison sentences for their respective arson convictions.

As a result of the multiple jury process, the trial lasted four weeks and fostered a variety of issues for appeal. Webb and Ewish capitalize on this fact and each presents a derivation of the following arguments on appeal: (1) the district court improperly denied a requested jury instruction describing a lesser related offense to arson; (2) the district judge lacked the authority to empanel multiple juries; (3) the multiple jury process resulted in undue reversible prejudice; and (4) there was insufficient evidence to support their respective convictions.

Separately, Ewish makes two additional arguments. First, he claims that the district court improperly instructed the jury regarding use of a deadly weapon, and thus, his sentence was erroneously enhanced. Second, Ewish claims that the State's indictment allegations did not match its aiding and abetting theory of conviction at trial.

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We disagree with all Ewish's arguments and accordingly affirm his convictions and corresponding sentences. Similarly, we disagree with all Webb's arguments related to the Lopez firebombing and affirm his corresponding arson and murder convictions. However, we conclude that the trial court erred by rejecting a [110 Nev. 226] proposed jury instruction with respect to Webb's involvement in the Newton fire. Therefore, we reverse Webb's arson conviction stemming from his involvement in that crime.

DISCUSSION

  1. Lesser related instruction.

    At the close of evidence, Webb and Ewish introduced a jury instruction describing malicious destruction of property using an explosive device, codified in NRS 202.830 (hereinafter "explosive destruction"). 2 The proposed instruction mirrored the elements appearing in the statute. Webb and Ewish argued that explosive destruction was a lesser related crime to arson, and thus, they were entitled to the instruction being presented to the jury. The district court held otherwise, and appellants renew their contentions on appeal.

    The trial court must instruct the jury on a lesser related offense when three factors are established: (1) the lesser offense must be closely related to the offense charged; (2) the defendant's trial defense must be consistent with the lesser related offense; and (3) evidence must reasonably support guilt for the lesser related crime. Stanifer v. State, 109 Nev. 304, 849 P.2d 282 (1993); Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989). This court adopted the lesser related instruction requirement in Moore, and an examination of the facts therein illustrates application of these three factors.

    In Moore, several persons were charged with the beating and murder of a woman at a Reno apartment complex. Codefendant Mayfield presented evidence that he had arrived at the scene after the fatal blow was struck and had merely dragged the dead body behind a fence. Mayfield appealed his murder conviction, arguing that the district court improperly rejected a jury...

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