906 P.2d 714 (Nev. 1995), 24865, Alford v. State

Docket Nº:24865.
Citation:906 P.2d 714, 111 Nev. 1409
Party Name:Frederick Edson ALFORD, Jr., Appellant, v. The STATE of Nevada, Respondent.
Case Date:November 30, 1995
Court:Supreme Court of Nevada
 
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Page 714

906 P.2d 714 (Nev. 1995)

111 Nev. 1409

Frederick Edson ALFORD, Jr., Appellant,

v.

The STATE of Nevada, Respondent.

No. 24865.

Supreme Court of Nevada.

November 30, 1995.

[111 Nev. 1410] Parsons & FitzSimmons, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Robert L. Langford, Deputy District Attorney, Clark County, for Respondent.

OPINION

PER CURIAM:

In this appeal we hold that a first-degree murder conviction based on felony-murder

Page 715

cannot be sustained unless the indictment [111 Nev. 1411] or information puts the defendant on notice of this charge and states facts which support the conclusion that the murder was committed during the commission of an identified felony.

Appellant Alford stands convicted of first-degree murder with the use of a deadly weapon. The State charged Alford under an "open" charge of murder, which is to say that the State charged only that Alford killed with "malice aforethought." There was no specific charge of first-degree murder; and there was no specific charge of premeditation and deliberation and no charge that Alford was guilty of committing a homicide during the commission of a felony.

In his opening statement to the jury the prosecutor revealed the State's theory of its case, stating that "[t]his was a premeditated, cold blooded and deliberate act of murder. This was murder motivated by hate and anger." The defense response to these charges was to call a psychiatrist 1 to testify as to the mental condition of Alford at the time of the stabbing, hoping to convince the jury either that Alford was so overcome by emotions of hate, anger and jealousy as to be incapable of forming the specific intent to kill or that Alford had a mental state consistent with the commission of voluntary manslaughter rather than first-degree murder. Alford was not put on notice, by the information or by the prosecutor during trial, that he was being charged with first-degree murder under a felony-murder theory. Alford was thus not made aware until after the close of the evidence that he was going to be subject to a conviction of first-degree, felony-murder, a conviction that would be entered irrespective of his intent or other mental state at the time of the killing. Because of the manner in which he was accused and tried, Alford necessarily geared his defense to the mental aspects of the crime as they relate to the crime of manslaughter and to the mental elements of premeditation and deliberation required for first-degree murder.

Quite understandably Alford's defense was not directed toward [111 Nev. 1412] felony-murder charges, which were specifically levied against him only after the close of evidence in this case. Because Alford was not given fair notice of the charges of felony-murder and was not given an opportunity to defend against these charges, we reverse the conviction and rule that in future murder cases the State must, if it is going to seek a murder conviction based on a felony-murder theory, give notice in its charging document that it is seeking conviction based on a felony-murder theory and must state specific facts which would support such a charge.

The homicide in this case could have fallen into the category of first-degree (premeditated and deliberated) murder, second-degree murder or voluntary manslaughter. The homicide was committed during a time when Alford was attempting to effect a reconciliation with his former wife, and he found her in bed with another man. In apparent heat of passion he pounced upon the man and stabbed him a number of times with his...

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