Barton v. State
| Decision Date | 12 September 2001 |
| Docket Number | No. 33143.,33143. |
| Citation | 117 Nev. 686,30 P.3d 1103 |
| Parties | Ross Eric BARTON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Christopher R. Oram, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
In 1995, Ross Eric Barton was convicted of second-degree murder pursuant to a jury verdict and sentenced to life imprisonment. In 1996, this court dismissed his direct appeal.1 Barton then filed a post-conviction petition for a writ of habeas corpus alleging: (1) ineffective assistance of trial counsel for failing to request a jury instruction on the lesser charge of reckless driving causing substantial bodily harm; and (2) ineffective assistance of appellate counsel for failing to argue effectively that NRS 200.070, which defines "involuntary manslaughter," upon which the jury was instructed, is unconstitutionally vague and ambiguous. We conclude that under the traditional elements analysis, reckless driving is not a lesser included offense of murder; accordingly, the trial counsel was not ineffective for failing to request the instruction. Likewise, appellate counsel was not ineffective in arguing that NRS 200.070 is not unconstitutionally vague and ambiguous. Therefore, we affirm the judgment of the district court.
On September 20, 1994, Juan Sanchez and Ever Yurado were drinking beer in Yurado's car in front of Sanchez's apartment in Las Vegas for about four hours. When Sanchez was called inside the apartment, Yurado drove away. Shortly thereafter, Yurado's car collided with a car driven by Ross Barton. Yurado sped away. Barton pursued Yurado in his car, traveling at a high rate of speed. Eventually, Barton rammed Yurado's car, causing it to spin around and stop. Yurado told another driver that there was no need to call the police, but Barton asked a bystander to call them anyway. Yurado again drove away and Barton started chasing him. Yurado then made a U-turn around a median and resumed driving northbound on the street. According to eyewitnesses, Barton crossed the median ahead of Yurado and drove southbound in the northbound lanes in the direction of Yurado's oncoming car. Yurado made another U-turn, at which point Barton drove down the median. As Yurado emerged from the U-turn, Barton turned off the median, drove directly at Yurado's car and struck the driver's side of the car. Testimony at trial indicated that Barton was traveling at a speed of approximately forty-four miles per hour and was accelerating at the time of impact. As a result of the collision, Yurado suffered a skull fracture which eventually resulted in his death.
Barton was charged with open murder, tried before a jury, and found guilty of second-degree murder and sentenced to life imprisonment. This court dismissed his direct appeal. Barton filed a timely post-conviction petition for writ of habeas corpus in the district court, alleging ineffective assistance of trial and appellate counsel. The district court denied the petition and Barton now appeals.
This court reviews claims of ineffective assistance of counsel by the standard articulated in Strickland v. Washington.2 The question of whether a defendant has received ineffective assistance of counsel in violation of the Sixth Amendment is a mixed question of fact and law that is subject to independent review.3 Under the Strickland test, in order to show the inadequacy of his counsel's representation, Barton must show: (1) that counsel's performance was deficient, and (2) that he was prejudiced by this deficiency.4
Lesser included offense instruction
The first assignment of error concerning ineffective assistance of counsel is whether Barton's trial counsel was deficient for failing to request an instruction on the lesser charge of reckless driving causing death or substantial bodily harm under NRS 484.377. Barton argues that in this case reckless driving is a lesser included offense on which the district court was required to instruct the jury at the defendant's request. Thus, because the evidence supported the jury's consideration of reckless driving as an alternative to murder, trial counsel was deficient in failing to pursue this instruction.
NRS 175.501 provides that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged ...." Whether the judge would have been required to give the reckless driving instruction at Barton's request depends upon the meaning of the phrase "an offense necessarily included in the offense charged." The determination of what constitutes a lesser included offense is not clear under Nevada case law. In fact, at times "lesser included" and "lesser related" have not been distinguished, and two divergent tests have been applied to determine what constitutes a lesser included offense.5 This has resulted in confusion as to how a judge should determine whether lesser included instructions are required when requested. In light of United States Supreme Court opinions regarding lesser included offenses and this court's decision in Peck v. State,6 we take this opportunity to review and clarify the law of lesser included offenses in order to provide a clearer view as to what test should be applied.
The three basic approaches that have been used by this court and throughout the country7 to determine what constitutes a lesser included offense are: (1) considering only the elements of the crime to determine if the elements of one are entirely included in the other;8 (2) considering the factual allegations of the pleadings to determine if the allegations include all of the elements of the lesser offense;9 and (3) considering the actual evidence presented at trial to determine if some or all of the evidence which establishes the greater offense also establishes a lesser offense.10
These three approaches have been alternatively used in the various procedural contexts in which a lesser included offense is being considered. Several examples of such contexts include: (1) whether the conviction of a defendant for two offenses violates double jeopardy;11 (2) whether the defendant had sufficient notice of the lesser charge in order to comply with due process;12 (3) whether an information or indictment may be amended to include a lesser included offense;13 (4) whether a lesser included instruction should have been given;14 (5) whether such an instruction was erroneously given;15 (6) whether a prior offense is so similar to a charged offense that it may enhance the penalty;16 (7) whether the district court had jurisdiction over an offense;17 (8) whether a jury finding of guilt on two offenses was proper;18 and (9) whether two offenses merged.19 Despite the legal and factual differences in these contexts, this court has often relied on conclusions, and which test to use, from one type of case as authority for another.
The predominant test used for lesser included offenses was set forth in Lisby v. State. In Lisby, this court interpreted language similar to NRS 175.501 to be the codification of "the common law practice of allowing a defendant in a criminal trial to be found guilty of any offense which is necessarily included in that with which he is charged."20 This court stated: "[w]e adhere to the rule that to determine whether an offense is necessarily included in the offense charged, the test is whether the offense charged cannot be committed without committing the lesser offense."21 The test is met when all of the elements of the lesser offense are included in the elements of the greater offense.22 This court cited to statutes regarding the sale of a controlled substance and possession of a controlled substance, kidnapping and false imprisonment, and felonious assault and simple assault as examples of instances where lesser included offenses may be instructed, because the elements of one were entirely included in the other.23
On the other hand, in Owens v. State,24 this court addressed the issue of a lesser included offense in the double jeopardy context and applied a different test. In Owens, this court broadened the Lisby test, holding that the defendant was placed in double jeopardy when he was convicted of both attempted robbery with the use of a deadly weapon upon a person sixty-five years of age or older and battery with the use of a deadly weapon upon a person sixty-five years of age or older.25 This court said it not only would look to the elements of the charged offenses, but also would consider the particular facts of the case to determine whether one offense is a lesser included offense of the other.26 Thus, since Owens committed the robbery by battering the victim, the battery was held to be a lesser included offense of the robbery, even though battery is not a required element of the crime of robbery.27 Owen's conviction for battery with the use of a deadly weapon upon a person sixty-five years of age or older was thus reversed on double jeopardy grounds.28
In the context of determining whether a lesser included instruction is required, this court has often looked to more than merely the elements of the offenses and has adopted an approach similar to that contained in Owens, looking to the charging document and the proof at trial. For example, in Graves v. Young,29 this court held that, even though attempted murder can be committed with or without an assault, the trial court should look to the evidence submitted at trial and the charge contained in the indictment to determine whether assault is a lesser included offense of attempted murder. Likewise, in Kiper v. State,30 this court held that there was an evidentiary basis for an instruction on criminal trespass, and therefore the instruction should have been given as a lesser included offense of burglary.
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